Implementation Handbook For The Convention On The Rights Of The Child

Transcript

1 IMPLEMENTATION HANDBOOK FOR THE CONVENTION ON THE RIGHTS OF THE CHILD FULLY REVISED THIRD EDITION IMPLEMENTATION HANDBOOK IMPLEMENTATION HANDBOOK FOR THE CONVENTION ON THE FOR THE CONVENTION ON THE RIGHTS OF RIGHTS OF THE CHILD THE CHILD FULLY REVISED THIRD EDITION Since its adoption, in 1989, the Convention on the Rights of the Child has achieved almost universal ratification. The Implementation Handbook is a practical tool for all those involved in implementing the principles and provisions of the Convention and realizing the human rights of children. Under each article of the Convention, the Handbook records and analyzes the interpretation by the Committee on the Rights of the Child, the internationally-elected body of independent experts established to monitor progress worldwide. The Handbook adds analysis of relevant provisions in other international instruments, comments from other United Nations bodies and global conferences, and in appendices, the full text of the most relevant instruments. Throughout, the Handbook emphasizes the Convention’s holistic approach to children’s rights: that they are indivisible and interrelated, and that equal importance should be FULLY REVISED THIRD EDITION WITH CD-ROM attached to each and every right recognized therein. US$ 50.00 ISBN 978-92-806-4183-7 Sales No. E.07.XX.11

2 IMPLEMENTATION HANDBOOK FOR THE CONVENTION ON THE RIGHTS OF THE CHILD FULLY REVISED THIRD EDITION

3 © United Nations Children’s Fund 2007 Handbook has been commissioned by the United Nations Children’s Fund (UNICEF). The contents do The material in this ect the policies or the views of UNICEF. not necessarily refl The designations employed and the presentation of the material in this do not imply on the part of UNICEF Handbook the expression of any opinion whatsoever concerning the legal status of any country or territory, or of its authorities or the delimitation of its frontiers. Handbook may be freely reproduced with the appropriate acknowledgement. Permission to translate Any part of this should be obtained through the UNICEF Regional Offi Handbook all or any part of this ce for Europe, Palais des Nations, 1211 Geneva 10, Switzerland. ISBN 978-92-806-4183-7 Sales #: E.07.XX.11 UNICEF Regional Office for Europe Palais des Nations 1211 Geneva 10, Switzerland www.unicef.org English original, first printing, January 1998 Second printing, June 1998 Third printing, December 2000 Fully revised second edition, June 2002 Fully revised third edition, September 2007 Cover photographs (left to right): UNICEF/5376/Isaac; UNICEF/94-0971/Craig; UNICEF/95-1185/Pirozzi; UNICEF/HQ96-0224/Toutounji; UNICEF/3993/Sprague. For orders from Europe, Middle East and Africa United Nations Publications - Sales Office and Bookshop CH-1211 Geneva 10, Switzerland Tel: +41 (22) 917-2614 Fax: +41 (22) 917-0027 E-mail: [email protected] For orders from North America, Latin America and the Caribbean, and Asia and the Pacific United Nations Publications Room DC2-0853, Dept. 1004 - New York, NY 10017 Tel: (800) 253-9646, (212) 963-8302 Fax: (212) 963-3489 E-mail: [email protected] Layout: Printed on chlorine-free paper by Atar Roto Presse, Geneva, Switzerland

4 IMPLEMENTATION HANDBOOK FOR THE CONVENTION ON THE RIGHTS OF THE CHILD prepared for UNICEF by Rachel Hodgkin and Peter Newell FULLY REVISED THIRD EDITION

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6 ... Contents IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Foreword  35 . . . . . . . . . . . . . . . . . . 3 Best interests of the child 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Best interests ● Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . XI  39  . . . . . . . . . . . . . . . . . . . . To be reflected in legislation . . . . . . . . . . . . . . . . . . . ● States duty of care (article 3(2)) 40 XII Acknowledgements . . . . . . . . . . . . . .  ● Standards for institutions, services, facilities (article 3(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 XV Introduction . . . . . . . . . . . . . . . . . . . . . . . .  Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aims and structure  XV  XIX . . . . . . . . . . . . . . . . . . . . . . . How to use the Checklists Implementation of rights in 4  Explanation of references . . . . . . . . . . . . . . . . . . . . . . XX 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . the Convention 48 . . . . . . . . . . General measures of implementation ● Articles  50 Maximum extent of available resources . . . . . . . ● ● Progressive implementation . . . . . . . . . . . . . . . . . . . . . . . . 52 1 . . . . . . . . . . . . . . . . . . . . . . . . 1 Definition of the child . . . . . . . . . . . . All appropriate legislative measures 53 ● ● Starting point of childhood 2 . . . . . . . . . . . . . . . . . . . . . . . . . ● Administrative and other measures . . . . . . . . . . . . . 55 ● 3 The end of childhood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● . . . . . . . . . . . . . . 58 A comprehensive national strategy 4 . . . . . . . . . . Defining minimum ages in legislation ● 59 . . . . . . . . . . . Permanent government mechanisms ● Implementation Checklist 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . ● 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Child impact analysis ● 2 Non-discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ● 61 Budgetary analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Monitoring implementation 64 . . . . . . . . . . . . . . . . . . . . . . . . ● Definition of discrimination ● 18 . . . . . . . . . . . . . . . . . . . . . . . . ● Independent human rights institutions  Active implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 for children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 of non-discrimination ● International cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . 69  All children in jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . 23 Implementation Checklist 72 ● . . . . . . . . . . . . . . . . . . . . . . . . . . . Grounds for discrimination . . . . . . . . . . . . . . . . . . . . . . 24  . . . . . . . . . . .  Legitimate forms of discrimination 26 5 Parental guidance and the child’s  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Gender discrimination evolving capacities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 29 . . . . . . . . . . . . . . . . . . . . . . . . . . Children with disabilities  . . . . . . . . . . . . . . . . . . . . . . . . . . . Responsibilities of parents ● 76  30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . Children on the streets Definition of “family” ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 ● Discrimination on basis of status ● Child as a subject of rights and 30 . . . . . . . . . . . . . . . . . . . . . . . . . of parents, etc. (article 2(2) 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . evolving capacity 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Implementation Checklist 80 . . . . . . . . . . . . . . . . . . . . . . . . Preparation for parenthood ● . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Implementation Checklist 81

7 ● State assistance to speedily Children’s right to life and maximum 6 re-establish identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 83 . . . . . . . . . . . . . . . . . . survival and development ● Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 The inherent right to life ● Separation from parents . . . . . . . . . . . . . . . . . . . . 121 9 85  Abortion and euthanasia . . . . . . . . . . . . . . . . . . . . . . . . . Child’s right not to be separated except ● Infanticide  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 when necessary for best interests . . . . . . . . . . . . . . . . 122 ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Early marriage 123 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Children in state care  The death penalty ● 88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Children living and/or working 89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Armed conflict on the streets 124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other life-threatening violence ● . . . . . . . . . . . . . . . . . . . 90  Children in hospitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Honour killings ● 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124  Parents in prisons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Other harmful traditional practices . . . . . . . . . . . . . ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Child offenders  125 Suicide ● 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Parents working abroad  . . . . . . . . . . . . . . . . . . . . . . . . . . 125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Traffic accidents ● 92 125  Immigration and deportation . . . . . . . . . . . . . . . . . . Investigation and registration of death ● 92 . . . . . . . 126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Armed conflict Survival and development ● . . . . . . . . . . . . . . . . . . . . . . . . . . . 93  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Traditions or customs ● . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Implementation Checklist 127 . . . . . . . . . . . . . . Decision-making about separation ● . . . . . .  To be taken by competent authorities 127 7 Birth registration, name, nationality  To be subject to judicial review . . . . . . . . . . . . . . . . 128 and right to know and be cared for 129  To be in accordance with domestic law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 by parents  All parties to be heard in proceedings . . . . . . 129 ● The child’s right to be “registered ● Child’s right to maintain contact 98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . immediately after birth” 130 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . with both parents ● What details should be registered 101 . . . . . . . . . . . . . . . Information about parents or children ● Right to a name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● 102 130 . . . . . . . . . . . . . separated by an action of the State Right to acquire a nationality ● . . . . . . . . . . . . . . . . . . . . . . 103 Protection of those seeking information ● ● 105 . . . . Right, as far as possible, to know parents . . . . . . . . . . . . . . . . . 131 about separated family member 105  Meaning of “parent” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 ● Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . 106  Meaning of “as far as possible” . . . . . . . . . . . . . . . . ● Right, as far as possible, to be cared for 10 Entering or leaving countries 108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . by parents for family reunification 135 . . . . . . . . . . . . . . . . . . . . . . ● 110 Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . Applications to be dealth with ●  136 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In a positive manner Preservation of identity 8 113 . . . . . . . . . . . . . . . . . . . . . In a humane manner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138  ● Child’s right to preserve identity 114 . . . . . . . . . . . . . . . . . . In an expeditious manner 138 . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nationality  114 Child’s right to maintain contact with ● 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Name  . . . . . . . . . . . . . . 139 parents residing in different States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Family relations 114  ● . . . . . . . . . . . . . . . . . . . . . . . . . . Right to leave any country 140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “Preserving identity”  115 ● Right to enter own country . . . . . . . . . . . . . . . . . . . . . . . . . 140 . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Implementation Checklist 141

8 13 Child’s right to freedom Illicit transfer and non-return 11 of expression 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . of children abroad Restriction on child’s right 180 . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Measures to combat illicit transfer and ● ● Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 non-return Implementation Checklist ● 146 . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Child’s right to freedom of 185 . . . . . . thought, conscience and religion 149 . . . . Respect for the views of the child 12 ● Freedom of thought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 150 ● The child as a subject of rights . . . . . . . . . . . . . . . . . . . . Freedom of conscience 186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● . . . . . . . . . ● The child “capable of forming views” 153 Freedom of religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 ● ● Administrative and judicial proceedings: 188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Parental direction ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 article 12(2) 189 Schooling and freedom of religion ● . . . . . . . . . . . . . .  Complaints procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 192 . . . . . . ● Limitations on manifestation of religion ● Strategies for implementing 192 ● Discrimination on grounds of religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 participation rights . . . . . To be reflected in domestic legislation  158 194 . . . . . . . . . . . . . . . . . . . . . . . . . . . Implementation Checklist ●  . . . . . . . . . 159 Right to information, a prerequisite 15 Child’s right to freedom of 159 . . . . . . . . . . . . . . . . . . . . . . . . . . . . Without discrimination  197 . . . association and peaceful assembly . . . . . . . . . . . . . . . . . . . .  160 Not dependent on resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198 Freedom of association ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Education, training 160 Peaceful assembly ● 199 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● . . . . . 161 Monitoring implementation and impact 199 . . . . . . . . . . . . . . . . . . . . . . . . . . . Restriction on child’s right ● . . . . . . . . . . Implementation in different settings ● 162 ● Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . 201  In government and in overall 162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . policy-making . . . . . . . . . . . . . . . . . . . . . . . Child’s right to privacy 16 203 163 . . . . . . . . . . . . . . . . . . . . . . . . . . Children’s parliaments  ● 204 No arbitrary interference . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 Voting rights . . . . . . . . . . . . . . . . . . ● 204 Confidential advice for children 164 . . . . . . . . . . . . . . In local government and services  ● Privacy in institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In child protection  165 ● Privacy in juvenile justice and 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Within the family  207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . other proceedings  In adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Files on children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● 209 In alternative care 166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  ● 210 “Family”, “home” and “correspondence” . . . .  In schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 ● 211 Unlawful attacks on honour and reputation  In child employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 212 Implementation Checklist ● . . . . . . . . . . . . . . . . . . . . . . . . . . .  In environmental protection 168 . . . . . . . . . . . . . . . . . . . . In health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  168  In the media . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169  In asylum seeking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169  In juvenile justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 ● Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

9 ● A World Fit for Children : recommendations Child’s access to appropriate 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 on violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . information 217 ● “All forms” of violence 256 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Function of mass media 219 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 Children particularly vulnerable to violence ● ● Committee’s Day of General Discussion 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Early childhood 218 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . on the media 258  Children with disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Information from diversity of sources 220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adolescence 259  Social and cultural benefits from media ● 221 . . . . . . . HIV/AIDS 260  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Children’s books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 Unaccompanied or separated children  260 . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Linguistic needs of minorities 224 ● . . . . . . . . . 260 Protection from corporal punishment ● Guidelines for protection from injurious 262 . . . . . . . . . . Committee’s General Comment No. 8 ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 information . . . . . . . . . . . . . 264 Violence in schools, care and justice ● Privacy and the media ● 226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protective and preventive measures: ● . . . . . . . . . . . . . . . . . . . . . . . . . . . Implementation Checklist ● 227 265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . article 19(2) Committee’s Days of General Discussion ● 18 Parents’ joint responsibilities, 270 . . . . . . . . . . . . . . . . . . . . . . . . on violence against children 231 assisted by the State . . . . . . . . . . . . . . . . . . . . . . . . . . ● Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . 274 Parents’ primary responsibility for children 232 . . ● 20 Children deprived of their family Child’s best interests will be parents’ ● environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 232 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . basic concern 233 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Parent education ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● 278 “Family environment” ● Both parents’ common responsibilities . . . . . . . . 235 Committee’s Day of General Discussion ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 Single-parent families ● . . . . . . . . . . . . . . . 279 on children without parental care 236 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . When parents separate ● ● Right to special protection and assistance . . . 279 States to provide parents with ● ● Alternative care, including adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 appropriate assistance 280 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and foster care ● States to ensure institutions, facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 Institutional care ● 238 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and services for children Deprivation of liberty 285 ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appropriate measures ● Children with disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 for working parents Children who live and/or work ● Committee’s General Comment No. 7 . . . . . . . . . 242 ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286 on the streets Implementation Checklist ● . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 Unaccompanied refugee and ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288 immigrant children 19 Child’s right to protection from ● Continuity of upbringing in alternative care 288 all forms of violence . . . . . . . . . . . . . . . . . . . . . . . . . . 249 . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 ● Implementation Checklist ● Global movement to end violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 against children ● Study on violence against children, . . . . . . . . . . . . . . . . . 251 principles and recommendations

10 ● States’ cooperation with intergovernmental Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 21 . . . . . . . . . 315 and non-governmental organizations States which recognize ● 316 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Tracing family members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294 and/or permit adoption Protection of children whose family ● Child’s best interests the paramount ● . . . . . . . . . . . . . . . . . . . . . . . . . 316 members cannot be found 295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 ● Nationality ● Adoption authorized only by competent Implementation Checklist ● . . . . . . . . . . . . . . . . . . . . . . . . . . . 318 . . . . . . . . . . . . . 295 authorities in accordance with law Rights of children with disabilities 23 321 . . . ● Necessary authorization and consents ● Recognizing human rights of persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296 for adoption 322 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . with disabilities The child’s views 296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ●  322 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intercountry adoption under ● Convention on the Rights of Persons ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 certain conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324 with Disabilities  Only if child cannot be cared for in his . . . . . . . . . . ● Committee’s General Comment No. 9 327 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . or her country Definitions of “disability” 331 . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Equivalent standards to national adoption 299 . .  . . . . . . . . ● Discrimination on grounds of disability 332 299 . . . . . . . . . . . . . . . . . . . . . No improper financial gain  ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333 Causes of disability International agreements and arrangements ● ● Participation rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334 300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . on adoption placement 335 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Inclusive education 301 ● Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Right to special care and assistance 22 Refugee children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305 337 . . . . . . . . . . . . . . . . . . . . for fullest possible integration Avoiding institutionalization and detention ● 337 . . . . 306 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Law on refugee status ● 338 . . . . . . . . . . . . . . . . . . . . . . . . . . . International cooperation ● 309 ● Committee’s General Comment No. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Implementation Checklist 340 ● Children seeking refugee status whether . . . . . . . . . . . . . . . . . 308 unaccompanied or accompanied ● Internal displacement and migration 311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . not covered by article 22 ● Responsibilities of countries of origin/transit . . . . . . . . . . . . 312 countries, and bilateral cooperation ● Right to protection and assistance . . . . . . . . . . . . . . 313 ● Appropriate education, health and . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314 welfare services ● Detention of children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314

11 26 Child’s right to benefit Child’s right to health and 24 health services 343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . from social security 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . ● International Bill of Human Rights . . . . . . . . . . . . . . 344 . . ● 386 Child’s right to benefit from social security 345 ● Declaration on Primary Health Care . . . . . . . . . . . . ● Duty to realize this right in accordance ● A world fit for children – follow-up to 1990 388 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . with national law . . . . . . . . . . . . . . . . . . . . . . . . . 347 World Summit for Children ● Taking account of child’s and parents’ 351 Progressive implementation of health rights ● 389 . . . . . . . . . . . . . . . . . . . . . . . . resources and circumstances Discrimination issues ● 353 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Applications for benefits made by and ● Participation in relation to health rights ● . . . . . . 355 389 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . on behalf of the child 355 . . . . . . . . . . . . ● Reducing infant and child mortality ● Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 . . . . . . . . . . . Necessary assistance and health care 356 ● 27 Child’s right to an adequate . . . . . . . . . . . ● 357 Combating disease and malnutrition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393 standard of living Appropriate care for mothers ● 359 . . . . . . . . . . . . . . . . . . . . . . Standard of living adequate for physical, ● ● 359 . . . . . . . . . . . . . . . . . . . . . Health education and support mental, spiritual, moral and social . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359  Breastfeeding 394 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . development 361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Accident prevention 362 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . HIV/AIDS  Parents’ primary responsibility . . . . . . . . . . . . . . . . . . . . 395 ● Committee’s General Comment No. 3  . . . . . . 364 ● States’ duty qualified by national ● Preventive health care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363 395 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . conditions and resources Immunization  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363 ● States’ duty to support parents  Family planning 363 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 in cases of need . . . . . . . . . . . . . . . . . . . . . . . Adolescent health services  367 398 Nutrition ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Committee’s General Comment No. 4 . . . . . . . 368  398 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Housing ● 370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mental health  Child’s right to maintenance ● 371 . . . . . Abolishing harmful traditional practices ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401 (article 27(4)) ● International cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . 375 Recovery of maintenance from abroad ● . . . . . . . 402 376 ● Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . 403 Implementation Checklist ● . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Child’s right to periodic review of treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 ● Placements for care, protection 380 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . or treatment ● Periodic review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381 ● Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . 383

12 ● Preparing the child for responsible 407 . . . . . . . . . . . . . . . . . . Child’s right to education 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445 life in a free society 409 . . . . . . . . . . . . . . . . . Education system fit for children ● ● Developing tolerance and friendship Education rights to be achieved ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447 among peoples 411 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . progressively 448 ● Equality of sexes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definition of education ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Peace ● 449 Education on the basis of equal ● 450 ● Respect for the natural environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413 opportunity ● Freedom to establish private schools Girls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414  451 . . . . . . . . . . . . . . . which conform to the Convention 415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Rural children Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . 452 ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416 Minority groups  Children of minorities or 30  Children with disabilities and children with, of indigenous people 455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418 or affected by, HIV/AIDS 457 . . . . . . . . . . . . . Minority cultures and human rights ● . . . . . . . . . . . . . . . . 420 Children in forms of detention  Child’s right to enjoy his or her culture . . . . . . . . ● 460 421 . . . . . Compulsory and free primary education ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460 Indigenous children  ● Development of different forms of 462  Roma children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422 secondary education available to all  Children in armed conflict . . . . . . . . . . . . . . . . . . . . . . . . 462 Higher education available to all on basis ● ● 462 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . State initiatives 425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . of capacity Child’s right to practise his or her religion ● . . . . 463 ● . . . . . . . . Vocational information available to all 425 Child’s right to use his or her language 464 . . . . . . . ● ● Measures to reduce education drop-out ● Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . 467 426 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . rates ● 428 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . School discipline Child’s right to leisure, 31 Bullying 431 ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469 play and culture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Promotion of international cooperation ● 432 . . . . . . . . . . . . . . . . . . . 470 ● Child’s right to rest and leisure . . . . . . . . . . . . . . . . . . . . . . . . . . . Implementation Checklist 433 ● ● 471 . . . . . . . . . . . . . . Child’s right to play and recreation . . . . . . . . . . . . . . . . . . . . . . . 29 The aims of education 437 Child’s right to participate in cultural ● 473 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and artistic life . . . . . . . . . . . . . . . . ● International agreement on aims 438 ● State’s duty to promote children’s 439 ● Committee’s General Comment No. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473 opportunities ● Developing child to his or her fullest Equal opportunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474 ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440 potential ● 477 Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Developing respect for human rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442 and freedoms ● Developing respect for the child’s parents . . . 444 ● Developing respect for all cultural . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444 and national values

13 34 513 . . . . . . . . . Sexual exploitation of children 32 Child labour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479 Background to adoption of ● International instruments and standards ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514 the Optional Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480 concerning child labour 514 . . . . . . . . . . . . . . . . . Other international instruments ● ● 480 . . . . . . . The International Labour Organization 515 . . . . . . . . . . . . . . . . . . . . . Other international initiatives ●  481 . . . . . . . . . . . . . International labour conventions Human Rights Council’s   ILO Minimum Age Convention (No.138) 481 515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Special Rapporteurs  ILO Worst Forms of Child Labour  World congresses against commercial 482 . . . . . . . . . . . . . . . . . . . . . . . . . . . . Convention (No.182) . . . . . . . . . . . . . . . . 516 sexual exploitation of children  ILO Worst Forms of Child Labour United Nations General Assembly’s  483 . . . . . . . . . . . . . . . . . . . Recommendation (No.190) 516 . . . . . . . . . . . . . . . . . . . . . . . special session on children  ILO International Programme on ● United Nations Secretary-General’s Study . . . . . . . . . . . . . . . 486 the Elimination of Child Labour 516 . . . . . . . . . . . . . . . . . . . . . . on Violence Against Children ● Optional Protocols to the Convention 518 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Committee’s response 486 . . . . . . . . . . . . . . . . . . . . . . . . . . . on the Rights of the Child ● Groups particularly vulnerable ● International Bill of Human Rights and 518 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . to exploitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 child labour Girls 519 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  ● – follow-up A World Fit for Children  Boys 519 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488 . . . . . . . . . . . . . to 1990 World Summit for children . . . . . . . . . . . . . . . . . . . . . . . . . . Children with disabilities  519 489 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● The Global Compact Children in armed conflict  520 . . . . . . . . . . . . . . . . . . . . . . . . 489 . . . . . . . . . . . . . . . . . . ● Girls and economic exploitation  Refugees and internally ● Children whose liberty is restricted 490 . . . . . . . . . . . . . . 521 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . displaced children ● Right to protection from economic ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Legislative measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 491 exploitation Age of consent  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523 ● Committee’s Day of General Discussion  Sex tourism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524 491 . . . . . . . . . . on economic exploitation of children Complaints and judicial procedures . . . . . . . . . . 524  ● Minimum ages for admission 524 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other measures ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495 to employment ● 528 Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . ● . . . . . . . . . . . . . 496 Regulation of hours and conditions Violence against children in ● 35 Prevention of abduction, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 496 the workplace sale and trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 531 ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enforcement of article 498 533 The Committee’s general concerns ● . . . . . . . . . . . . . . 499 . . . . . . . . . . . . . . . . . . . . . . . . . . . Implementation Checklist ● 535 Trafficking and child labour ● . . . . . . . . . . . . . . . . . . . . . . . . 503 . . . . . . . . . . . . . . . . . . . Children and drug abuse 33 ● Trafficking and adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535 . . . . . . . . . . . . . 536 ● Trafficking and sexual exploitation Threat to children 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● ● Trafficking and armed conflict . . . . . . . . . . . . . . . . . . . . . 537 ● 506 . . . . . . . . . . . . . . . . . . . . . . . . . . Understanding drug abuse 537 . . . . . . . . . . . . . . . . Trafficking and organ transplants ● ● Legislative and administrative measures . . . . . 507 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 538 ● Victims, not criminals . . . . . . . . . . . . . . . . ● Social and educational measures 508 540 Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . ● ● Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . 510

14 ● Declaration on the Protection of Women Protection from other forms 36 and Children in Emergency and Armed of exploitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 543 576 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conflict 544 ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gifted children ● Impact of Armed Conflict Study on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The media ● 544 577 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . on Children Research and experimentation ● . . . . . . . . . . . . . . . . . . . 544 Optional Protocol on the involvement ● 545 . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Implementation Checklist 579 . . . . . . . . . . . . . . . . . . . . . . of children in armed conflict ● ILO Worst Forms of Child Labour 37 Torture, degrading treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 579 Convention (No.182) 547 and deprivation of liberty . . . . . . . . . . . . . . . . . . 579 Security Council resolutions ● . . . . . . . . . . . . . . . . . . . . . . . . ● United Nations rules and guidelines Comments by the Committee ● . . . . . . . . . . . . . . . . . . . . . . 580 548 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . on juvenile justice 581 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Results of armed conflict ● Torture, etc. 548 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 583 ● Recruitment of under-18-year-olds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 550 Other international instruments ● Prosecution for war crimes 584 ● . . . . . . . . . . . . . . . . . . . . . . . . . . Enforced disappearance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551 ● International Criminal Court . . . . . . . . . . . . . . . . . . . . 584  Forms of inhuman or degrading ● 585 . . . . . . . . . . . . . . . . . . . Prosecution by States Parties  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 552 punishment ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585 Anti-personnel mines Solitary confinement or isolation 554 . . . . . . . . . . . . . . . . . ● 587 . . . . . . . . . . . . . . . . . . . . . . . . . . . Implementation Checklist ● . . . . . . . . . . . . . . . 554 Death penalty; life imprisonment ● 39 Rehabilitation of child victims . . . . . . . . . . . 589 556 ● Deprivation of liberty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● 558 . . . . . . . . . . . . . . . . . . . . . . . . . . . Arrest, pre-trial detention . . . . . . . . . . . . . . . . . . . . . . . . . ● 590 Rehabilitating child victims 559 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Imprisonment ●  Victims of neglect, exploitation or abuse . 591 . . . . . 560 Detention outside juvenile justice system ●  Victims of economic exploitation . . . . . . . . . . . . 593 563 . . . . . . . . . . . Treatment when deprived of liberty ●  Children involved with juvenile 564 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Separation from adults ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 595 justice systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contact with family ● 565 Victims of torture, inhuman or degrading  Legal safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 565 ● 595 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Complaints procedures 566 596 Victims of armed conflict . . . . . . . . . . . . . . . . . . . . . . . .  ● Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 566 598 . . . . . . . . . . . . . . . . . . . . . . . . . . . Implementation Checklist ● ● . . . . . . . . . . . . . . . . . . . . . . . . . . . 568 Implementation Checklist 38 Protection of children affected by armed conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573 ● International humanitarian law . . . . . . . . . . . . . . . . . . . 574 ● Geneva Conventions and Additional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575 Protocols

15 43 The Committee on the Rights 601 . . . . . Administration of juvenile justice 40 of the Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 637 United Nations rules and guidelines ● 639 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Role of the Committee ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603 on juvenile justice Membership and election 639 ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604 Committee’s General Comment No. 10 . . . . . . . . ● 639 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● Meetings ● Establishing a child-oriented juvenile 641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Documentation ● . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603 justice system  607 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Non-discrimination 44 Reporting obligations of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  609 Best interests States Parties 643 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Participation ● Initial reports and periodic reports . . . . . . . . . . . . . 644 . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of public opinion  609 645 ● Reporting guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  610 ● Committee’s overview of 610 . . . . . . . . . . . . . . . . . . . . . . . . . . Prevention of offending  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 647 the reporting process Positive aims of juvenile justice ● 611 . . . . . . . . . . . . . . . . . . . ● Pre-sessional Working Group meetings . . . . . . . . 647 Legal safeguards 611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ● ● Making reports widely available . . . . . . . . . . . . . . . . . . 652 Need for a distinct system of juvenile justice ● 616 . . 654 ● Implementation Checklist (article 44(6)) . . . . . 617 . . . . . . . . . . . . . . . . . . Age of criminal responsibility   . . . . 618 Avoiding resort to judicial proceedings Cooperation with United Nations 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Variety of dispositions 619 ● 655 . . . . . . . . . . . . . . . . . agencies and other bodies ● Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . 620 Miscellaneous provisions 46-54 Respect for existing human 41 . . . . . . . . 657 concerning the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 625 rights standards 626 ● Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . Optional Protocol on the involvement . . . . . . . . . . . . . . . . . . . of children in armed conflict 659 42 Making the Convention widely 627 known . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 660 . . . . . . . . . . . . . . . . . . . . . . . Standards of the Convention ● ● Provisions of the Optional Protocol . . . . . . . . . . . . . 660 A comprehensive strategy ● . . . . . . . . . . ● Criminalizing the use of child soldiers 663 628 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . for dissemination . . . . . . . . . . . . . . . . . . . . . ● Rehabilitation and prevention 664 629 ● Training concerning Convention . . . . . . . . . . . . . . . . . 665 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reporting obligations ● ● Information on training requested ● 666 Implementation Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . 630 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . by Committee ● Examination of States’ reports . . . . . . . . . . . . . . . . . . . . 631 Optional Protocol on the sale 634 . . . . . . . . . . . . . . . . . . . . . . . . . . . Implementation Checklist ● of children, child prostitution 669 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and child pornography 671 . . . . . . . . . . . . Provisions of the Optional Protocol ● . . . . . . . . . . . . . . . . . . . . . . . . . . . Implementation Checklist 676 ●

16 ● International Covenant on Civil and 679 . . . . . . . . . . . . . . . . . . . . . . . . . . Appendices  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 719 Political Rights, 1966 Guide to the United Nations system 1 680 ● International Covenant on Economic, . . . . . . . . . . . . . . . . . 725 Social and Cultural Rights, 1966 Convention on the Rights 2 ● 729 . . . . . . . . . . ILO Minimum Age Convention, 1973 of the Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 685 ● United Nations Standard Minimum ● Optional Protocol on the involvement Rules for the Administration of Juvenile . . . . . . . . . . . . . . . . . . . . . 692 of children in armed conflict. . . . . . . . . . . . . . . . . . . . . 732 Justice (“Beijing Rules”), 1985 Optional Protocol on the sale of children, ● United Nations Guidelines for ● . . . 695 child prostitution and child pornography the Protection of Juveniles Delinquency 739 . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Riyadh Guidelines), 1990 Committee on the Rights 3 ● United Nations Rules for the Protection 699 of the Child: Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . 742 of Juveniles Deprived of their Liberty, 1990 Revised Guidelines regarding the form ● Hague Convention on Protection of ● and content of periodic reports to be Children and Cooperation in respect of submitted by States Parties under article 44, 747 . . . . . . . . . . . . . . . . . . . . . . . Intercountry Adoption, 1993 . . . . . . . . . . . . . . 699 paragraph 1(b), of the Convention ● Standard Rules on the Equalization Guidelines regarding initial reports to ● of Opportunities for Persons with be submitted by States Parties under 751 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Disabilities, 1993 article 8 (1) of the Optional Protocol ● ILO Worst Forms of Child Labour to the Convention on the Rights of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 759 Convention, 1999 the Child on the involvement of children ● Protocol to Prevent, Suppress and Punish . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704 in armed conflict Trafficking in Persons, Especially Women ● Revised Guidelines regarding initial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 761 and Children, 2000 reports to be submitted by States Convention on the Rights of Persons ● Parties under Article 12, paragraph 1, 765 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . with Disabilities, 2006 of the Optional Protocol to the Convention 774 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bibliography 5 on the Rights of the Child on the sale of children, child prostitution and . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 787 ● Acronyms 707 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . child pornography 4 Other key instruments . . . . . . . . . . . . . . . . . . . . . . . . 715 ● Universal Declaration of Human . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 715 Rights, 1948 ● Declaration of the Rights of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717 the Child, 1959

17 Foreword Foreword . ... Between 2001 and 2007, the Committee issued he Convention on the Rights of the Child 10 General Comments, authoritative statements was once described by Nelson Man- of interpretation in relation to particular articles dela as “that luminous living document T or areas of concern. In addition, the Committee’s that enshrines the rights of every child general discussion of the Convention has become without exception to a life of dignity and self- a key annual event that highlights important child fulfi lment”.* rights issues, and recommendations from the Com- mittee have led to two major United Nations stu- Almost a decade has passed since the fi rst edition dies: that led by Graça Machel on the impact of of UNICEF’s Implementation Handbook for the Con- ict on children, and the recent compre- armed confl vention on the Rights of the Child was launched hensive global study on violence against children, in January 1998 in Geneva. It has since become a led by Professor Paulo Sérgio Pinheiro. well-known practical tool used by governments, UNICEF and other United Nations agencies, as well If the Convention is to achieve its potential to trans- as non-governmental organizations, human rights form the lives of children worldwide, it needs to be institutions and academics, to guide them on the well known and its binding obligations on States implementation of the Convention. Hand- must be fully understood. We hope that this book will continue to play a part in this process. That a fully revised third edition is needed already is a testimony to the energy and output of the Committee on the Rights of the Child. This Com- mittee has been examining the reports of States party to the Convention for 14 years. Over that period it has developed a progressive and detai- led interpretation of the implications for States of the Convention’s 42 substantive articles, and more recently of the two Optional Protocols to the Con- vention, on sale of children, child prostitution and Ann M. Veneman child pornography, and on the involvement of chil- Executive Director dren in armed confl ict. UNICEF * Taken from a statement on Building a Global Partnership for Children , Johannesburg, 6 May 2000. FOREWORD XI

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19 Preface Preface ... activities of the Committee and its appendices s the fi rst seven chairpersons of the Committee on the Rights of include a guide to related United Nations bodies the Child, we welcome the pre- and the texts of key international instruments. A paration and publication of this Implementation Handbook for the Convention on will be widely used We hope that the Handbook . the Rights of the Child by all those involved in promoting the fullest pos- sible implementation of the Convention – gover- Handbook The provides a detailed reference for nments and governmental agencies, UNICEF and the implementation of law, policy and practice to other United Nations organizations and bodies, promote and protect the rights of children. The international, regional and national NGOs and Handbook brings together under each article an others. analysis of the Committee’s growing interpreta- tion during its fi rst fourteen years and the exam- As the Committee noted in the report of its ination of over 300 of its Concluding Observations second session in 1992, its members are “solely following consideration of States’ reports. It places accountable to the children of the world”. We these in the context of key comments, decisions Handbook hope this will help to bring the Con- and reports of the other treaty bodies and relevant vention alive and encourage all those working United Nations bodies. with and for children to see implementation as more than a formal process. We hope it will be The Handbook also provides a concise description seen as the vivid and exciting process of working of the role, powers and procedures, and developing to improve the lives of the world’s children. Hoda Badran Akila Belem bao go San dra Mason Chairperson Chairperson Chairperson 1991-1995 1995-1997 1997-1999 Nafsiah Mboi Jakob E. Doek Awa Ndeye Ouedraogo Yanghee Lee Chairperson Chairperson Chairperson Chairperson 1999-2000 2001-2007 2000-2001 2007- PREFACE XIII

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21 Acknowledgements Acknowledgements ... Handbook he idea of this was born in conver- Birgit Arellano, Ulla Armyr, Carlos Arnaldo, Jo Becker, sations with past and present members of Mark A. Belsey, Christoph Bierwirth, Julie Bissland, Paul Bloem, Neil Boothby, Denis Broun, Giovanna the Committee on the Rights of the Child T Campello, Nigel Cantwell, Geert Cappelaere, Eva and with Bilgé Ögün Bassani, former Deputy Clärhall, David Clark, Shalini Dewan, Bruce Dick, Regional Director of UNICEF’s Regional Office for Abdel Wahed El Abassi, Carl von Essen, Preeti Europe in Geneva. We are grateful for the support Ghelano, Målfrid Grude Flekkøy, Kimberly Gamble- and assistance we have received during the prepara- Payne, Savitri Goonesekere, Christina Gynnå Oguz, tion of successive editions of the from the Handbook Ian Hassall, James R. Himes, Caroline Hunt, Rachel UNICEF Regional Office for Europe. Hurst, Urban Johnsson, June Kane, Gerison Lansdown, The production of this fully revised third edition was Janis Marshall, Kathleen Marshall, Marta Maurás, realized with the support of: Hans Olsen, Deputy Sarah McNeill, Dan O’Donnell, Vitit Muntarbhorn, Regional Director and Caroline Bakker, Project Marjorie Newman-Williams, Yoshie Noguchi, Alfhild Officer at the Geneva Regional Office; Marta Santos Petrén, Rebecca Rios-Kohn, Philippa Russell, Hélène Pais, Director, UNICEF’s Innocenti Research Centre Sackstein, Ben Schonveld, Robert Smith, Rodolfo in Florence and Susan Bissell, Chief, Implementing Stavenhagen, Laura Theytaz-Bergman, Juana Tomas- International Standards Unit at the Centre. The Rossello, Trond Waage. project was made possible thanks to a generous We very gratefully acknowledge the meticulous edi- contribution of the Swedish Government. ting of Hélène Martin-Fickel. Omissions and mistakes which remain are entirely our responsibility. We very much hope that those who Rachel Hodgkin and Peter Newell use the will provide comments to UNICEF, Handbook London, August 2007 to ensure that future editions are improved. First and foremost, we gratefully acknowledge the contribution of current and former members of the and Peter Newell , who were R achel Hodgkin Committee on the Rights of the Child. commissioned by UNICEF to prepare the Implemen- , are long-term advocates for and tation Handbook The Office of the High Commissioner for Human commentators on the human rights of children, in Rights, in particular: the successive secretaries of the the United Kingdom and internationally; both work Committee on the Rights of the Child, Paolo David as consultants for UNICEF. They live in London and and – since 2005, Maja Andrijasevic-Boko. have three children. Those from all over the world who were asked to review all or part of various drafts of the first and Rachel Hodgkin is a consultant on and advocate for , and who subsequent editions of the Handbook children’s rights. Previously she worked for the Natio- have provided encouragement and comments: nal Children’s Bureau (where she was clerk to the ACKNOWLEDGEMENTS XV

22 All-Party Parliamentary Group for Children) and for in the United Kingdom. He chaired the Council of the the Children’s Legal Centre, which she helped set up. Children’s Rights Alliance for England from 1992 to Effective Government Struc- Her publications include 2002. He was a member of the NGO Advisory Panel for Child Impact (with Peter Newell), tures for Children the United Nations Secretary-General’s Study on Vio- Statements: an experiment in child-proofing UK Par- lence Against Children and also of the Independent Safe to let out? The current and liamentary Bills and Expert’s Editorial Board for the Study, 2004 – 2006. He future use of secure accommodation in England. has written various commentaries on children’s rights Coordinator of the Global Initiative to Peter Newell in the United Kingdom and also a detailed propo- End All Corporal Punishment of Children, launched in sal for a children’s rights commissioner, published as 2001, and of the “Children are unbeatable!” Alliance . Taking Children Seriously Implementation Handbook for the Convention on the Rights of the Child XVI

23 Introduction Introduction ... Aims Aims and structure Handbook aims to be a practical tool for he cussions which it has convened on topics rela- implementation, explaining and illustra- ted to the Convention), the special significance ting the implications of each article of the of the Committee’s comments are highlighted T Convention on the Rights of the Child and in the text in blue (individual Committee mem- of the two Optional Protocols adopted in 2000 as bers are also quoted, but the quotations are well as their interconnections. Under each article not highlighted, as they do not carry the same brings together, analyses and sum- Handbook the authority); marizes: ● illustrative comments from the travaux prépa- of the Convention, the reports of the ratoires ● comments and recommendations of the Com- sessions of the Working Group which drafted mittee on the Rights of the Child, recognized the Convention; as the highest authority for interpretation of reservations and declarations made by States ● the Convention, from the official reports of its when ratifying or acceding to the Convention; 44 sessions (1991 to February 2007), and rele- vant extracts from the Committee’s reporting ● relevant provisions from other international guidelines. It includes excerpts from and sum- instruments, for example from the Univer- maries of the Committee’s General Comments. sal Declaration of Human Rights and the two In particular, it analyses the Committee’s International Covenants, on Civil and Political “Concluding Observations” on Initial, Second Rights and on Economic, Social and Cultural and Third Reports submitted by States Parties. Rights (many of the Convention’s articles have When the Committee is speaking as the Com- their origin in these instruments), other Decla- mittee (for example in its General Comments, rations and Conventions, United Nations rules Concluding Observations and in official reports and guidelines on juvenile justice, the Stan- dard Minimum Rules on the Equalization of of its sessions and of the Days of General Dis- INTRODUCTION XVII

24 and recommendations to States is to illustrate and Opportunities for Persons with Disabilities, expand interpretation of the Convention. Those Conventions of the International Labour Orga- who wish to analyse progress in particular States nization (ILO) and the Hague Conventions; are encouraged to obtain the Initial Report and relevant General Comments from other “Treaty ● subsequent Periodic Reports of the State, together Bodies”, the Committees responsible for super- with the records of the Committee’s examination vising implementation of other international of these reports, and its Concluding Observations. instruments including, in particular, the Human The section on each article in the Handbook is Rights Committee (responsible for the Covenant structured to include: on Civil and Political Rights) and the Committee on Economic, Social and Cultural Rights (res- a concise summary of the article’s implications ● ponsible for the Covenant on Economic, Social and its relationship with other articles; and Cultural Rights); detailed consideration of the background to ● Manual on Human Rights comments from the ● and implications of individual elements of the Reporting , the 1997 edition of which includes article; a chapter by the first Rapporteur to the Com- ● occasional boxed examples from official reports mittee on the Rights of the Child, Marta Santos and recommendations (the has not Handbook Pais, on the Convention; attempted to analyse reports and other infor- ● comments and recommendations from other mation provided by non-governmental organi- key United Nations bodies and agencies, and zations). These boxes are intended to illustrate conclusions and recommendations of global and illuminate issues raised by the article; conferences on human rights and social devel- a concluding “Implementation Checklist”: this ● opment. poses questions designed to be used to investi- The Handbook does not include analysis of regio- gate progress towards implementation; it also nal human rights instruments, nor does it cover emphasizes that the articles of the Convention international or regional legal case law. are interdependent and identifies other closely The role and activities of the Committee on the related articles; Rights of the Child and the reporting obligations the appendices include the full texts of the ● of States Parties under the Convention are covered Convention on the Rights of the Child, the two under the relevant Convention articles – articles 43 Optional Protocols and other key instruments, and 44. Guidelines for Perio- and of the Committee’s is not intended as a guide to the The Handbook . In addition there is dic Reports (Revised 2005) progress of implementation in individual countries. a guide to United Nations and United Nations- The purpose of quoting the Committee’s comments related agencies, and a bibliography. Implementation Handbook for the Convention on the Rights of the Child XVIII

25 How to use How the Implementation Checklists he checklists have no official status. Each and evaluation and necessary training and so on. Checklist has been drafted to help all those Further questions relate to the detail of implemen - involved in implementation – Governments, tation. UNICEF and other United Nations agencies The questions are drafted so that they can be and international bodies, NGOs and others T answered “YES”, “NO”, “PARTIALLY” or “DON’T – to investigate the implications of the article for KNOW” (insufficient information available to assess law, policy and practice and to promote and eva - implementation). Answering “yes” or “no” to the luate progress towards implementation. questions which make up each Checklist does not - necessarily indicate compliance or non-compliance The Checklists concern implementation, not repor - ting. They should not be confused with the offi with the Convention. Guidelines for reporting cial prepared by the Com - The Checklists can be used as the basis from which mittee on the Rights of the Child to advise States to develop more detailed and sensitive checklists parties in the preparation of Initial and Periodic for national or local use. Beyond the basic “YES”, Reports under the Convention. “NO” or “DON’T KNOW” answers, the questions Each Checklist includes a reminder that no arti - provide a framework for collecting together the cle should be considered in isolation – that the relevant information to build up a full analysis of and commentary on implementation. - Convention is indivisible and its articles interde pendent. The Checklists emphasize that in imple - So if the answer to a Checklist question is “YES”, a menting each article, regard should be paid to the summary could follow of the relevant law, policy “general principles” highlighted by the Committee and practice, and references to more detailed on the Rights of the Child and that other articles information which confirms the realization of the which are particularly closely related should be particular right for all relevant children. If “NO”, identified. an outline of the situation, and a summary of Each Checklist starts with a question about “gene - action required for compliance could be made. The answer “PARTIALLY” would be accompanied by ral measures of implementation” for the article in question: have the responsible government information on the state of implementation, and departments and other agencies been identified on further action required. If the answer is “DON’T and appropriately coordinated, has there been a KNOW”, there could be a summary of available - - information and an outline of the gaps in infor comprehensive review and adoption of an imple - mation which make it impossible to determine the mentation strategy, budgetary analysis and allo cation of resources, development of monitoring state of implementation of the particular right. CTION u NTROD I XIX

26 Explanation Explanation of references bbreviated references are in- cluded in the text throughout, with a bibliography giving full references, and a list of the in- States Parties must sub- States Parties’ reports. A ternational instruments refer- Initial Report within two years of rati- mit their red to, in Appendix 4, page 679. Commonly used fying the Convention. Subsequently, every five acronyms are explained on page 787. years, States Parties must submit Periodic Reports, Second Report, as Handbook referred to in the Official reports of the Committee , etc. Third Report on the Rights of the Child Concluding Observations All Preliminary and The following abbreviated versions of references Observations on States Parties’ reports were in to certain series of the official Reports of the Com- the series “CRC/C/15/Add. ...” until the Commit- mittee on the Rights of the Child are used in this tee’s fortieth session (September/October 2005) . Handbook when a new self-explanatory system of referen- ces has been adopted in the United Nations docu- Guidelines. Guidelines for Initial Reports; Guide- mentation system and is used from that date in , Revised Guidelines for lines for Periodic Reports Handbook . These include an abbreviation of the Periodic Reports: these are the guidelines prepa- the State Party’s name and the number of the red by the Committee for States Parties on the report. For example “CRC/C/CHN/CO/2” denotes reports to be submitted under the Convention. the Concluding Observations on China’s Second The full titles are: Report; “CRC/C/OPSC/CHN/CO/1” denotes the General Guidelines regarding the form and Concluding Observations on China’s Initial Report contents of initial reports to be submitted by Sta- under the Optional Protocol on the sale of chil- tes Parties under article 44, paragraph 1(a), of the dren, child prostitution and child pornography. , (CRC/C/5, 15 October 1991); Convention Session reports. An official report is published General Guidelines regarding the form and following each of the sessions of the Committee contents of periodic reports to be submitted by Handbook the on the Rights of the Child. In the States Parties under article 44, paragraph 1(b), of full reference is given, for example Report on the the Convention , (CRC/C/58, 20 November 1996, re- fifth session, January 1994, CRC/C/24, pp. 38 to 43. vised 3 June 2005); These are now referenced General Comments. in the series: CRC/C/GC/1 – 10. (Within the United Nations documentation system, special symbols have been established for each of the human rights Treaty Bodies. Thus the reference for all Committee on the Rights of the Child documents begins “CRC/C/...” An explanation of all United Nations human rights document symbols is available from the Office of the High Commiss- ioner for Human Rights’ website: ). www.ohchr.org Implementation Handbook for the Convention on the Rights of the Child XX

27 On 11 June 2007, the United Nations, Save the Chil- Other key documents dren Sweden and the Office of the United Nations High Commissioner for Human Rights launched Other key documents frequently referred to inclu- Legislative History of the Convention on the Rights de: Reservations, Declarations and Objections rela- . It provides of the Child, volume 1 and volume 2 ting to the Convention on the Rights of the Child . a comprehensive record of the legislative history This document is regularly updated. The version of the Convention on the Rights of the Child. It referred to in the text is CRC/C/2/Rev.8, 7 Decem- contains the records of all meetings during a ten- ber 1999. year period, up to and including the date when Compilation of General Comments and Gene- the United Nations’ Convention on the Rights of ral Recommendations adopted by Human Rights the Child was approved in 1989. . This document is regularly updated. Treaty Bodies Manual on Human Rights Reporting : a first edition, The version referred to in the text is HRI/GEN/1/ covering major international human rights instru- Rev.8, 8 May 2006. ments but not the Convention on the Rights of the Travaux préparatoires : As yet, all reports of the Child, was jointly published by the United Nations “open-ended Working Group” which drafted Centre for Human Rights and the United Nations the Convention on the Rights of the Child have Institute for Training and Research in 1991. not been published. The “open-ended Working A new edition, published in 1997, includes a section Group” which drafted the Convention on the on “The Convention on the Rights of the Child” by Rights of the Child was set up by the United Na- Marta Santos Pais, who was first Rapporteur of the tions Commission on Human Rights in 1979. Edited Committee on the Rights of the Child (this edition extracts from the official reports were published is jointly published by the Office of the High Com- The United Nations Convention on in 1992 in missioner for Human Rights, Geneva; United Na- the Rights of the Child, A Guide to the “Travaux tions Institute for Training and Research (UNITAR); préparatoires” , compiled and edited by Sharon United Nations Staff College Project, Turin; United Detrick, Martinus Nijhoff Publishers. Where ex- Nations, Geneva, 1997). In the Handbook , the two tracts from the Travaux préparatoires are quoted editions are referred to as the Manual on Human , the reference to the official Handbook in the Rights Reporting , 1991, and the Manual on Human United Nations document and also the book reference are given. Rights Reporting , 1997.  How to get the Committee’s reports The Office of the High Commissioner for Human Rights is the Secretariat for the Committee on behalf of the Secretary-General. Summary records are prepared for all public and some private meetings of the Commit- tee (all meetings are held in public unless the Committee decides otherwise). The Initial and Periodic Reports of States Parties, Concluding Observations of the Committee, Summary Records and Reports on the Commit- tee’s sessions are generally made available in the Committee’s three working languages (English, French and Spanish); in addition the Committee may decide to make particular documents available in one or more of the other “official” languages of the Convention (Arabic, Chinese and Russian).  Distribution and Sales Section Palais des Nations 8-14, Avenue de la Paix 1211 Geneva 10, Switzerland They are also available electronically: www.ohchr.org ... ... INTRODUCTION XXI

28 UNICEF/97-0507/Murray-Lee

29 c l i t e r a Definition of the child ... Text of Article 1 For the purposes of the present Convention, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier. are required to set minimum ages for employ- rticle 1 of the Convention on the ment (article 32) and for criminal responsibility Rights of the Child defines “child” (article 40). The requirement to make primary for the purposes of the Convention as education compulsory also implies setting an every human being below the age of A age (article 28). 18. The wording leaves the starting point of child- hood open. Is it birth, conception, or somewhere The Committee has emphasized that, when in between? Had the Convention taken a position States define minimum ages in legislation, they on abortion and related issues, universal ratifi- must do so in the context of the basic principles cation would have been threatened. For the pur- within the Convention, in particular the prin- poses of the Convention, childhood ends at the ciple of non-discrimination (article 2, for exam- 18th birthday unless, in a particular State, major- ple challenging different marriage ages for boys ity is achieved earlier. and girls), as well as the principles of best inter- Summary ests of the child (article 3) and the right to life Setting an age for the acquisition of certain rights and maximum survival and development (article or for the loss of certain protections is a complex 6). There must be respect for the child’s “evolv- matter. It balances the concept of the child as a ing capacities” (article 5): in General Comment subject of rights whose evolving capacities must No. 7 on “Implementing child rights in early be respected (acknowledged in articles 5 and childhood”, the Committee on the Rights of the 14) with the concept of the State’s obligation to Child underlines that “young children are hold- provide special protection. On some issues, the ers of all the rights enshrined in the Convention. Convention sets a clear line: no capital punish- They are entitled to special protection measures ment or life imprisonment without the possi- and, in accordance with their evolving capacities, bility of release for those under the age of 18 the progressive exercise of their rights” (CRC/C/ (article 37); no recruitment into the armed forces GC/7/Rev.1, para. 3). And there should be consis- or direct participation in hostilities for those tency, for example, in the ages set for the comple- under the age of 15 (article 38 and see Optional tion of compulsory education and for admission Protocol on the involvement of children in ar med to employment. conflict, page 659). On other issues, States DEFINITION OF THE CHILD 1

30 In its reporting guidelines, the Committee asks the survival and development of the child” under States Parties for information on the definition article 6. of the child in domestic legislation and to specify For example, Argentina stated in a declaration: any differences between boys and girls. In com- “Concerning article 1 of the Convention, the ments, it has encouraged States to review their Argentine Republic declares that the article must definition of childhood and to raise the protec- be interpreted to the effect that a child means tive minimum ages, in particular those for sexual every human being from the moment of concep- consent, admission to employment and criminal tion up to the age of 18.” (CRC/C/2/Rev.8, p. 13) responsibility. It has emphasized that gender dis- The Holy See, in its declaration, “recognizes that crimination should be eliminated. ■ the Convention represents an enactment of princi- ples previously adopted by the United Nations and, Starting point of childhood for once effective as a ratified instrument, will safe- purposes of Convention i c t l guard the rights of the child before as well as after r e a birth, as expressly affirmed in the Declaration of Neither the 1924 nor the 1959 Declaration of the the Rights of the Child and restated in the ninth Rights of the Child defined the beginning or end preambular paragraph of the Convention. The of childhood. But the Convention’s Preamble Holy See remains confident that the ninth pre- draws attention to the statement in the Preamble ambular paragraph will serve as the perspective to the 1959 Declaration “that the child, by rea- through which the rest of the Convention will be son of his physical and mental immaturity needs interpreted, in conformity with article 31 of the special safeguards and care, including appropri- Vienna Convention on the Law of Treaties of 23 before as well as after birth ate legal protection, ” May 1969.” (CRC/C/2/Rev.8, p. 24) (editors’ emphasis). The United Kingdom, in contrast, declared that it As mentioned previously, the wording of article 1 “interprets the Convention as applicable only fol- of the Convention avoids setting a starting point lowing a live birth”. (CRC/C/2/Rev.8, p. 42) for childhood. The intention of those who drafted the article was to avoid taking a position on abor- And Luxembourg stated: “The Government of tion and other pre-birth issues, which would have Luxembourg declares that article 6 of the present threatened the Convention’s universal acceptance. Convention presents no obstacle to implementa- tion of the provisions of Luxembourg legislation The preambular statement from the 1959 Declar- concerning sex information, the prevention of ation, quoted above, caused difficulties within back-street abortion and the regulation of preg- the Working Group that drafted the Convention. nancy termination.” The (CRC/C/2/Rev.8, p. 28) In order to reach consensus, the Group agreed Committee on the Rights of the Child has sug- travaux that a statement should be placed in the gested that reservations to preserve state laws préparatoires to the effect that “In adopting this on abortion are unnecessary. It has commented preambular paragraph, the Working Group does adversely on high rates of abortion, on the use not intend to prejudice the interpretation of art- of abortion as a method of family planning and icle 1 or any other provision of the Convention on “clandestine” abortions, and has encouraged by States Parties.” (E/CN.4/1989/48, pp. 8 to 15; measures to reduce the incidence of abortion. Detrick, p. 110) (For further discussion see article 6, page 85.) Thus, the Convention leaves individual States to China made the following reservation: “The balance for themselves the conflicting rights and People’s Republic of China shall fulfil its obliga- interests involved in issues such as abortion and tions provided by article 6 of the Convention to the family planning. And it is relevant to note that extent that the Convention is consistent with the article 41 emphasizes that the Convention does provisions of article 25 concerning family plan- not interfere with any domestic legislation (or ning of the Constitution of the People’s Republic applicable international law) “more conducive to of China and with the provisions of article 2 of the the realization of the rights of the child...” Law of Minor Children of the People’s Republic Obviously most of the articles of the Convention of China.” (CRC/C/2/Rev.8, p. 16) can apply to the child only after birth. Various The Committee, consistent with its general prac- States have, however, found it necessary to lodge tice of urging all States to withdraw reservations, declarations or reservations underlining their urged China to review and withdraw the reserva- own particular legislative and/or other attitudes tion in its Concluding Observations on China’s to the unborn child, in particular in relation to the Initial Report (China CRC/C/15/Add.56, para. child’s “inherent right to life” and the State’s obli- gation to “ensure to the maximum extent possible 24) and again, in 2005, commenting on China’s Implementation Handbook for the Convention on the Rights of the Child 2

31 “The Committee recommends that the State Second Periodic Report (China CRC/C/CHN/ Party enact, as soon as possible, a clear legal CO/2, paras. 8 and 9). definition of the child applicable throughout In its General Comment No. 7 on “Implementing the country and review existing age limits in child rights in early childhood”, the Committee various areas, including marriage, child labour and the Penal Code provisions on child sexual emphasizes that young children are holders of all abuse, in order to bring them into compliance the rights enshrined in the Convention: with international standards.” (Sri Lanka “... They are entitled to special protection CRC/C/15/Add.207, para. 22) measures and, in accordance with their evolving capacities,the progressive exercise Commenting on the Second Periodic Report of of their rights. The Committee is concerned Saudi Arabia in 2006, the Committee expressed that in implementing their obligations under concern the Convention, States Parties have not given “... that a judge has the discretionary power to sufficient attention to young children as i c t l r e decide that a child has reached majority at an a rights holders and to the laws, policies and earlier age”. programmes required to realize their rights during this distinct phase of their childhood. It recommended The Committee reaffirms that the Convention “... that the State Party take the necessary on the Rights of the Child is to be applied legislative and other measures to holistically in early childhood, taking account unequivocally set the age of majority at 18 of the principle of the universality, indivisibility with no exception for specific cases, including and interdependence of all human rights.” within the juvenile justice system...” (Saudi (Committee on the Rights of the Child, General Arabia CRC/C/SAU/CO/2, paras. 25 and 26) Comment No. 7, 2005, CRC/C/GC/7/Rev.1, para. 3) Reviewing the Initial Report of Dominica, the The Committee provides a “working definition” Committee noted a distinction between “child” of early childhood: (under 14 years) and “young person” (between 14 “In its consideration of rights in early and 18 years). It went on to recommend childhood, the Committee wishes to include “... that the State Party ensure that, despite all young children: at birth and through the current distinction between a child infancy; during the pre-school years; as well and a young person, both receive the same as during the transition to school. Accordingly, protection under the Convention.” the Committee proposes as an appropriate (Dominica CRC/C/15/Add.238, para. 20) working definition of early childhood the period from birth to the age of 8 years; The Committee has also emphasized that defini- States Parties should review their obligations tions of the child under local customary law must towards young children in the context of this be consistent with article 1 (see, for example, definition.” (CRC/C/GC/7/Rev.1, paras. 3 and 4) Mozambique CRC/C/15/Add.172, paras. 23 and 24). The end of childhood In a relevant General Comment on a provision For the purposes of the Convention on the Rights concerning child protection in the International of the Child, childhood ends and majority is Covenant on Civil and Political Rights, the Human achieved at the 18th birthday “unless, under the Rights Committee emphasizes that protective ages law applicable to the child, majority is attained must not be set “unreasonably low”, and that in earlier”. Thus the Convention is more prescrip- any case a State Party cannot absolve itself under tive, but not inflexible, about defining for its pur- the Covenant from obligations to children under poses the end of childhood. 18 years old, even if they have reached the age of majority under domestic law. In its 2003 General Comment No. 4 on “Adolescent health and development in the context Article 24 of the International Covenant recog- of the Convention on the Rights of the Child”, the nizes the right of every child, without any dis- Committee emphasizes that “adolescents up to 18 crimination, to receive from his or her family, years old are holders of all the rights enshrined in society and the State the protection required by the Convention; they are entitled to special pro- his or her status as “a minor”. The Covenant does tection measures, and, according to their evolv- not define “minor”, nor does it indicate the age at ing capacities, they can progressively exercise which a child should attain majority. In its 1989 their rights (art. 5)”. (CRC/GC/2003/4, para. 1) General Comment No. 17 the Human Rights Committee states: “This is to be determined by The Committee has encouraged States to review each State Party in the light of the relevant social the age of majority if set below 18, and in particu- and cultural conditions. In this respect, States lar to raise protective ages. For example: DEFINITION OF THE CHILD 3

32 should indicate in their reports the age at which with higher ages of majority should lower them, acknowledging that the definition in article 1 is the child attains his majority in civil matters and “for the purposes of the ... Convention”. assumes criminal responsibility. States should also indicate the age at which a child is legally Reviewing the definition of “child” entitled to work and the age at which he is treated In most societies, until they ratified the as an adult under labour law. States should fur- Convention, there had been no comprehensive ther indicate the age at which a child is considered consideration of the various laws defining child- adult for the purposes of article 10, paragraphs 2 hood. Article 1 provokes such a review of all rele- and 3 [which cover separate treatment for juve- vant legislation in each State Party. The Guidelines nile offenders]. However, the Committee notes requests States for Periodic Reports (revised 2005) that the age for the above purposes should not be Parties “to provide updated information with set unreasonably low and that in any case a State respect to article 1 of the Convention, concern- Party cannot absolve itself from its obligations i c t l r e a ing the definition of a child under their domestic under the Covenant regarding persons under the laws and regulations, specifying any differences age of 18, notwithstanding that they have reached between girls and boys” (CRC/C/58/Rev.1, para. the age of majority under domestic law.” (Human 19). The Committee continues to encourage States Rights Committee, General Comment No. 17, which have not done so to review and harmonize 1989, HRI/GEN/1/Rev.8, para. 4, p. 184) laws with the Convention’s definition. During the drafting of the Convention on the Rights of the Child, some States’ representatives Defining specific minimum argued unsuccessfully for an age lower than 18 to ages in legislation be set. However, the view that the age should be set high to afford greater protection prevailed (see The original Guidelines for Periodic Reports E/CN.4/L.1542, pp. 5 and 6; Detrick, pp. 115 and (CRC/C/58) requested information on “the mini- 116). The text allows States in which majority is mum legal age defined by the national legisla- attained before the age of 18 to substitute a lower tion” for various listed purposes (see box). Many age for particular purposes – provided doing so is of the issues covered relate to other articles in the consistent with the whole of the Convention, and Convention; further interpretation and discussion in particular with its general principles. Equally, Handbook on will be found in the sections of this those articles. the Convention itself does not insist that States “At what age” issues identified by Committee In its original Guidelines for Periodic Reports, adopted in 1996, the Committee on the Rights of the Child requested States Parties to provide relevant information, with respect to article 1, on the following: Any differences between national legislation and the Convention on the definition of the child; The minimum legal age defined by the national legislation for the following: Legal and medical counselling without parental consent; Medical treatment or surgery without parental consent; End of compulsory education; Admission to employment or work, including hazardous work, part-time and full-time work; Marriage; Sexual consent; Voluntary enlistment in the armed forces; Conscription into the armed forces; Participation in hostilities; Criminal responsibility; Deprivation of liberty, including by arrest, detention and imprisonment, inter alia in the areas of administration of justice, asylum seeking and placement of children in welfare and health institutions; Capital punishment and life imprisonment; Giving testimony in court, in civil and criminal cases; Implementation Handbook for the Convention on the Rights of the Child 4

33 Lodging complaints and seeking redress before a court or other relevant authority without parental consent; Participating in administrative and judicial proceedings affecting the child; Giving consent to change of identity, including change of name, modification of family rela- tions, adoption, guardianship; Having access to information concerning the biological family; Legal capacity to inherit, to conduct property transactions; To create and join associations; Choosing a religion or attending religious school teaching; Consumption of alcohol and other controlled substances; How the minimum age for employment relates to the age of completion of compulsory school- i c t l r ing, how it affects the right of the child to education and how relevant international instruments e a are taken into account; In cases where there is a difference in the legislation between girls and boys, including in rela- tion to marriage and sexual consent, the extent to which article 2 of the Convention has been given consideration; In cases where the criteria of puberty is used under criminal law, the extent to which this pro- vision is differently applied to girls and boys, and whether the principles and provisions of the Convention are taken into consideration.” (CRC/C/58, para. 24) The request for information on minimum And the Convention emphasizes the importance legal ages does not imply that the Convention of respecting children’s “evolving capacities” requires a specific age to be set in each case. The (article 5, see page 77; also article 14, see page Committee is simply seeking information on how 185). Some States, in addition to setting in legis- domestic law defines the child. In general, min- lation certain ages for the acquisition of particu- imum ages that are protective should be set as lar rights, include in their law a flexible concept high as possible (for example protecting children of the child’s evolving capacities so that children from hazardous labour, criminalization, custo- acquire rights to make decisions for themselves dial sentences or involvement in armed conflict). on certain matters once they have acquired “suf- Minimum ages that relate to the child gaining ficient understanding”. The advantage of such autonomy and to the need for the State to respect formulas is that they avoid rigid age barriers; the the child’s civil rights and evolving capacities, disadvantage is that they leave judgements on demand a more flexible system, sensitive to the when children have acquired sufficient under- needs of the individual child. standing to adults, who may not respect the con- cept of evolving capacities. Some “minimum age” issues relate both to increased autonomy and to protection. For The Committee has emphasized consistently that example, the child’s right to seek legal and medi- in setting minimum ages, States must have regard cal counselling and to lodge complaints without to the entire Convention and in particular to its parental consent, and to give testimony in court, general principles. There must be no discrimina- may be crucial to protection from violence within tion, the child’s best interests must be a primary the family. It is not in the child’s interests that any consideration and the child’s maximum survival minimum age should be defined for such pur- and development must be ensured. poses. The importance of the non-discrimination prin- The Convention provides a framework of princi- ciple (article 2) in relation to the definition of the ples; it does not provide direction on the specific child is stressed in the Committee’s Guidelines age, or ages, at which children should acquire for Periodic Reports (Revised 2005) , which asks such rights. Under article 12, children capa- for States to specify any differences between girls ble of forming views have the right to express and boys (CRC/C/58/Rev.1, para. 19). their views freely in all matters affecting them. Their views must be given “due weight in accor- In relation to monitoring implementation of the dance with the age and maturity of the child”. whole Convention, the Committee has underlined DEFINITION OF THE CHILD 5

34 to participate in proceedings relating to separa- the importance of collecting consistent data on all children up to 18. tion from parents under article 9. Medical counselling. The child’s right to The list of minimum legal ages the Committee receive medical counselling without paren- requested information on in its original tal consent is vital in cases in which the child’s Guidelines for Periodic Reports (CRC/C/58) is by views and/or interests are distinct from, or may no means comprehensive. During consideration be in conf lict with, those of parents – for exam- of initial and periodic reports from States Parties, ple cases of violence by parents and other family the following additional age-related issues have members; cases involving child/parent conf licts been raised: voting age and the minimum age for over access to health services and treatment deci- standing in elections; age at which a child can sions, and the adolescent child’s access to family independently acquire a passport; age limitations planning education and services. The child’s right on access to certain media (films, videos, etc.); to advice and counselling is distinct from consid- i c t age at which a child can join a religious order or l r e a eration of the age at which the child may acquire community for life. an independent right to consent to medical treat- The next section covers the various issues listed ment – see below. in the original Guidelines for Periodic Reports Article 24(2)(e) requires States to take appropri- on which the Committee seeks information under ate measures to ensure that children as well as article 1 (see box). parents “are informed, have access to education and are supported in the use of basic knowledge Legal or medical counselling of child health and nutrition, the advantages of without parental consent breastfeeding, hygiene and environmental sanita- While the seeks information on any Guidelines tion and the prevention of accidents”. “minimum legal age defined by the national legislation”, the Convention provides no sup- In its General Comment No. 4 on “Adolescent port for setting a minimum age below which the health and development in the context of the child cannot seek and receive independent legal Convention on the Rights of the Child”, the or medical counselling. The purpose of the ques- Committee proposes: tion is to determine which, if any, children are “In light of articles 3, 17 and 24 of the excluded from this right. The right to seek advice Convention, States Parties should provide does not in itself imply a right to make decisions, adolescents with access to sexual and reproductive information, including on family which would be dependent on the child’s evolving planning and contraceptives, the dangers of capacities. early pregnancy, the prevention of HIV/AIDS Legal counselling. The child’s right to receive and the prevention and treatment of sexually transmitted diseases (STDs). In addition, States legal counselling without parental consent is Parties should ensure that they have access to clearly vital to the enforcement of many rights appropriate information, regardless of their guaranteed under the Convention, including marital status and whether their parents or some where the child’s interests are distinct from, guardians consent. It is essential to find proper or may even be in conflict with, those of the par- means and methods of providing information ent, for example: in cases of violence to chil- that is adequate and sensitive to the dren, including sexual abuse, within the family particularities and specific rights of adolescent and in institutions; in cases of dispute over chil- girls and boys... dren’s rights to a name or a nationality; in cases “With regard to privacy and confidentiality, involving separation from parents, family reuni- and the related issue of informed consent to treatment, States Parties should fication, illicit transfer and abduction, adoption, (a) enact laws or regulations to ensure that exploi-tation in employment and other forms of confidential advice concerning treatment exploitation. is provided to adolescents so that they can give their informed consent. Such laws or The child’s own right to legal assistance when regulations should stipulate an age for this alleged as or accused of having infringed the process, or refer to the evolving capacity of the penal law is referred to in article 40(2)(b)(ii). child; and Similarly, the child whose liberty is restricted (b) provide training for health personnel has the right to “prompt access to legal and other on the rights of adolescents to privacy and appropriate assistance...” under article 37(d). It is confidentiality, to be informed about planned also necessary for children to be able to receive treatment and to give their informed consent legal counselling when exercising their right to to treatment”. (Committee on the Rights of be heard in “any judicial and administrative pro- the Child, General Comment No. 4, 2003, CRC/ GC/2003/4, paras. 28 and 33.See also paras. 39 ceedings affecting the child...” (article 12(2)), and Implementation Handbook for the Convention on the Rights of the Child 6

35 and 41. For full text of General Comments see minimum ages should be raised, and, further, has www.ohchr.org/english/bodies/crc/comments.htm.) frequently recommended that States should ratify the relevant International Labour Organization’s Medical treatment or surgery Conventions on minimum ages for employment without parental consent (see article 32, page 481). Some countries have set an age at which a child Sexual consent can give valid consent, or withhold consent, to medical treatment. Legislation in other countries In most countries, a minimum age is set below provides that children acquire independent rights which children are judged incapable of consent- to consent and to withhold consent once they are ing to any form of sexual activity with others. judged to have “sufficient understanding”; in The definition of sexual abuse and exploitation some cases, legislation also defines a minimum includes not only conduct involving violence or age at which maturity should be assumed. other forms of coercion, but also all sexual con- i c t duct with a child below a certain age, even when l r e a In its General Comment No. 4, referred to above, it was or appeared to be consensual (see also the Committee states that if an adolescent is of article 19, page 257 and article 34, page 523). sufficient maturity, Consequently sexual intercourse with a child “... informed consent shall be obtained from below the age of consent renders the perpetrator the adolescent her/himself, while informing automatically liable to the charge of rape. the parents if that is in the ‘best interest of the child’ (art. 3)”. (CRC/GC/2003/4, para. 32) The Committee on the Rights of the Child has emphasized the importance of setting a minimum In some countries, legislation enables courts to age below which a child’s consent is not to be con- intervene and order medical treatment of a child sidered valid. In its General Comment No. 4 on in cases where a parent has refused consent, per- “Adolescent health and development in the context haps on cultural or religious grounds. This inter- of the Convention on the Rights of the Child”, the vention would be justified under the Convention Committee refers to the need to set a minimum by article 3(1) and (2). age for sexual consent and marriage (see below) and states: When compulsory education ends Article 28(1)(a) and (b) require States to achieve “These minimum ages should be the same for boys and girls (article 2 of the Convention) and the child’s right to education “progressively and closely reflect the recognition of the status of on the basis of equal opportunity”; primary edu- human beings under 18 years of age as rights cation must be compulsory, and the develop- holders, in accordance with their evolving ment of different forms of secondary education capacity, age and maturity (arts. 5 and 12 must be encouraged and made “available and to 17).” (Committee on the Rights of the Child, accessible to every child”. The ages of primary General Comment No. 4, 2003, CRC/GC/2003/4, and secondary education are not defined by the para. 9) Convention (see article 28, page 424). Article 32 The Committee has proposed to various coun- requires States to protect the child from any work tries that the age set for sexual consent should that is likely to interfere with the child’s educa- be raised, but has not proposed that it should be tion. The Committee on the Rights of the Child raised to 18. has indicated the need to coordinate the age at which compulsory education ends with the age for It may be assumed that the status of marriage access to full-time employment (see also article implies an ability to consent to sex with one’s 32, page 495). In several cases, the Committee has Guidelines for Periodic partner. The original expressed concern at “discrepancies” between the asks whether the non-discrimination Reports ages and proposed “an equal age” (see page 496). requirements of the Convention’s article 2 have been given ample consideration “in cases where Admission to employment or work, there is a difference in the legislation between including hazardous work, girls and boys, including in relation to marriage part-time and full-time work and sexual consent...” (CRC/C/58, para. 24) Article 32 requires States to protect children from “any work that is likely to be hazardous or to The Committee has expressed concern at dispari- interfere with the child’s education”, to “provide ties between ages of consent to heterosexual and for a minimum age or minimum ages for admis- to homosexual activities, which amount to dis- sion to employment” and to “provide for appro- crimination on grounds of sexual orientation: priate regulation of the hours and conditions of “... concern is expressed at the insufficient employment”. The Committee on the Rights of efforts made to provide against discrimination based on sexual orientation. While the the Child has in several cases recommended that DEFINITION OF THE CHILD 7

36 Committee notes the Isle of Man’s intention Recommendation No. 21, 1994, HRI/GEN/1/ to reduce the legal age for consent to Rev.8, para. 36, p. 315, see below, page 9). homosexual relations from 21 to 18 years, The Committee on the Rights of the Child has it remains concerned about the disparity that continues to exist between the ages repeatedly emphasized to many States Parties for consent to heterosexual (16 years) and that the age of marriage for both girls and boys homosexual relations. must be the same to conform with article 2 of the “It is recommended that the Isle of Man Convention. For example: take all appropriate measures, including of a “The Committee is concerned at the low legal legislative nature, to prevent discrimination minimum age for marriage and that different based on the grounds of sexual orientation legal ages for marriage are set for girls (14) and to fully comply with article 2 of the and boys (16). Convention.” (United Kingdom – Isle of Man “The Committee encourages the State Party CRC/C/15/Add.134, paras. 22 and 23. See also i c to increase the minimum age of marriage for United Kingdom – Overseas Territories t l r e a girls and for boys and that it set this minimum CRC/C/15/Add.135, paras. 25 and 26) age at an equal and internationally acceptable Marriage level. The State Party is also advised to undertake awareness-raising campaigns and In many societies, an age is set when children other measures to prevent early marriages...” may marry without parental consent (usually the (Mexico CRC/C/MEX/CO/3, paras. 21 and 22) age of majority), and a lower age is set when they may marry with parental consent. In some societ- The Committee has also expressed concern about ies, marriage is permitted in exceptional cases at discriminatory situations in which different laws an earlier age with the permission of a court or may provide different marriage ages within one other authority, for example when a girl is preg- State – thus asserting its view that the general nant or has a child. Marriage age is of particu- principles of the Convention should override the lar significance because in many countries upon cultural and religious background to such dis- marrying children are assumed to acquire major- crimination. ity and thus to lose their protective rights under The Universal Declaration of Human Rights, in the Convention. article 16, states that men and women “of full In its General Comment No. 4 on “Adolescent age” have the right to marry and to found a fam- health and development in the context of the ily. The Convention on Consent to Marriage, Convention on the Rights of the Child”, the Minimum Age for Marriage and Registration of Committee expresses concern Marriages (1962) does not set a minimum age for “... that early marriage and pregnancy are marriage. It notes this in its Preamble and goes on significant factors in health problems related to reaffirm that all States should take all appro- to sexual and reproductive health. Both the priate measures to eliminate completely child legal minimum age and the actual age of marriages and the betrothal of young girls before marriage, particularly for girls, are still very the age of puberty. Its article 2 requires States low in several States Parties. There are also Parties to “take legislative action to specify a non-health-related concerns: children who minimum age for marriage. No marriage shall be marry, especially girls, are often obliged legally entered into by any person under this age, to leave the education system and are except where a competent authority has granted a marginalized from social activities. Further, dispensation as to age, for serious reasons, in the in some States Parties married children are legally considered adults, even if they are interests of the intending spouses.” under 18, depriving them of all the special As noted above, in 1994 the Committee on the protection measures they are entitled under Elimination of Discrimination against Women the Convention. The Committee strongly recommends that States Parties review, and (CEDAW) made a General Recommendation on where necessary, reform their legislation and equality in marriage and family relations, which practice to increase the minimum age for proposes that the minimum age for marriage marriage with and without parental consent to should be 18 for both women and men. Within the 18 years, for both girls and boys.” (Committee Recommendation, CEDAW analyses three art- on the Rights of the Child, General Comment No. 4, icles in the Convention on the Elimination of All 2003, CRC/GC/2003/4, para. 20) Forms of Discrimination against Women that have special significance for the status of women in the The Committee refers to a similar recommen- family, as a contribution to the International Year dation, that the minimum age should be 18, of the Family (1994). Article 16 of the Convention made by the Committee on the Elimination of requires States to take all appropriate measures Discrimination against Women in 1994 (General Implementation Handbook for the Convention on the Rights of the Child 8

37 to eliminate discrimination against women in all of Discrimination against Women, General Recommendation No. 21, 1994, HRI/GEN/1/Rev.8, matters relating to marriage and family relations. paras. 36, 38 and 39, p. 315) Paragraph 2 requires that “The betrothal and the marriage of a child shall have no legal effect, and Voluntary enlistment and all necessary action, including legislation, shall conscription into armed forces; be taken to specify a minimum age for marriage participation in hostilities and to make the registration of marriages in an Article 38 of the Convention on the Rights of official registry compulsory.” the Child requires States to refrain from recruit- CEDAW comments: “In the Vienna Declaration ing into their armed forces anyone who has not and Programme of Action adopted by the World attained the age of 15, and, in recruiting children Conference on Human Rights, held at Vienna between the ages of 15 and 18, “to give priority to from 14 to 25 June 1993, States are urged to repeal those who are oldest”. In addition States Parties i c t l r e existing laws and regulations and to remove cus- must “take all feasible measures to ensure that a toms and practices which discriminate against persons who have not attained the age of fifteen and cause harm to the girl child. Article 16(2) and years do not take a direct part in hostilities”. In the provisions of the Convention on the Rights of May 2000 the United Nations General Assembly the Child preclude States Parties from permitting adopted the Optional Protocol to the Convention or giving validity to a marriage between persons on the involvement of children in armed con- who have not attained their majority. In the con- flict to increase protection and the Committee text of the Convention on the Rights of the Child, encourages all States Parties to sign and rat- ‘a child means every human being below the age ify the Protocol without delay. The Optional of 18 years unless, under the law applicable to the Protocol entered into force in 2002. It requires child, majority is attained earlier’. States Parties to it to ensure that nobody under the age of 18 is recruited compulsorily into their “Notwithstanding this definition, and bearing in armed forces and to “take all feasible measures” mind the provisions of the Vienna Declaration, to ensure that under-18-year-old members of their the Committee considers that the minimum age armed forces do not take a direct part in hostili- for marriage should be 18 years for both man ties. States must take all feasible measures to pre- and woman. When men and women marry, they vent recruitment and use in hostilities of children assume important responsibilities. Consequently, under 18 years by armed groups. States Parties to marriage should not be permitted before they the Optional Protocol must raise “in years” the have attained full maturity and capacity to act. minimum age for voluntary recruitment, set at According to the World Health Organization, 15 in the Convention (for full discussion, see when minors, particularly girls, marry and have page 659). children, their health can be adversely affected and their education is impeded. As a result their The Committee on the Rights of the Child has economic autonomy is restricted... commended States that have set a higher age limit on recruitment than 15 and that have ratified the “Some countries provide for different ages for Additional Protocols to the Geneva Conventions. marriage for men and women. As such provisions The Committee has stated clearly that it believes assume incorrectly that women have a differ- there should be no involvement in hostilities and ent rate of intellectual development from men, or no recruitment into the armed forces of anyone that their stage of physical and intellectual devel- under 18 years old. opment at marriage is immaterial, these provi- Criminal responsibility sions should be abolished. In other countries, the betrothal of girls or undertakings by family mem- Article 40(3)(a) of the Convention on the Rights bers on their behalf is permitted. Such measures of the Child proposes “the establishment of a contravene not only the Convention, but also a minimum age below which children shall be pre- woman’s right freely to choose her partner. sumed not to have the capacity to infringe the penal law”. “States Parties should also require the registra- tion of all marriages whether contracted civ- In its General Comment No. 10 on “Children’s illy or according to custom or religious law. The rights in Juvenile Justice”, the Committee urges State can thereby ensure compliance with the States not to set the minimum age at too low a Convention and establish equality between part- level and to continue to raise the age to an inter- ners, a minimum age for marriage, prohibition of nationally acceptable level (CRC/C/GC/10, paras. bigamy and polygamy and the protection of the .; for full discussion, see article 40, et seq 30 page 601). It is clear, from the Initial and Periodic rights of children.” (Committee on the Elimination DEFINITION OF THE CHILD 9

38 Reports of States Parties and from the reports of General Comment No. 10 on “Children’s rights in discussions with the Committee, that the defini- Juvenile Justice”, the Committee re-emphasizes tion of the age of criminal responsibility is often the Convention’s requirement that deprivation of blurred. In some States, it appears, paradoxically, liberty must in all circumstances only be used that children can be liable under criminal law for as a measure of last resort, and provides detailed major offences at a younger age than they can be guidance, including on pre-trial detention (CRC/ liable for minor offences. ; for full discussion see C/GC/10, paras. 78 et seq. article 37, page 547). The Committee has, in several cases, underlined that a minimum age must be defined in legisla- In article 9, the principle that a child shall only tion. For many States, the Committee has urged be separated from his or her parents when such that the age should be raised, and the Committee separation “is necessary for the best interests of has welcomed proposals to set the age at 18. For the child” places further limits on restriction of i c t l example: r e liberty away from the family. a “The Committee urges the State Party to raise The original Guidelines for Periodic Reports the minimum age of criminal responsibility requests information on the minimum legal age and to ensure that children aged 15 to 18 years defined in the national legislation for “Deprivation are accorded the protection of juvenile justice provisions and are not treated as adults...” of liberty, including by arrest, detention and (Ethiopia CRC/C/15/Add.144, para. 29) imprisonment, inter alia in the areas of adminis- tration of justice, asylum seeking and placement “The Committee notes that the age of criminal of children in welfare and health institutions” responsibility has been raised from 7 to 10 (CRC/C/58, para. 24; see also article 37, page years, but continues to be concerned that the 557). This emphasizes that article 37 applies to age of criminal responsibility remains low and unclear, with different ages mentioned in any restriction of liberty of the child, not just to various legislations. that occurring within the penal system. “The Committee recommends that the Capital punishment and life State Party raise the legal age of criminal imprisonment responsibility to an internationally more acceptable age by amending its legislation Article 37(a) of the Convention on the Rights of in this regard and ensuring that all children the Child bars the imposition of capital punish- below 18 years are accorded the protection of ment and life imprisonment without the possi- (Cyprus CRC/C/15/ juvenile justice provisions.” bility of release for offences committed before Add.205, paras. 23 and 24) the age of 18. In several cases, the Committee The United Nations Standard Minimum Rules has expressed concern at breaches of this clear for the Administration of Juvenile Justice, the prohibition. In addition, the Committee has “Beijing Rules”, proposes in rule 4: “In those expressed concern at situations in which the law legal systems recognizing the concept of the age technically still allows capital punishment of of criminal responsibility for juveniles, the begin- those under the age of 18, although the sentence ning of that age shall not be fixed at too low an is not applied in practice, and at situations where age level, bearing in mind the facts of emotional, suspended sentences of death are permitted for mental and intellectual maturity.” (For further under-18-year-olds (see article 6, page 88 and discussion, see article 40, page 617.) article 37, page 554). Deprivation of liberty; imprisonment Giving testimony in court, in civil Article 37(b) requires that “no child shall be and criminal cases deprived of his or her liberty unlawfully or Article 12(2) requires that the child shall have arbitrarily. The arrest, detention or imprison- the opportunity to be heard in any judicial and ment of a child shall be in conformity with the administrative proceedings that affect him or law and shall be used only as a measure of last her. Here again, the Convention does not suggest resort and for the shortest appropriate period of that a minimum age be set; the Committee seeks time”. While the Convention on the Rights of the information on whether children below a certain Child sets no lower age limit on restriction of lib- age are barred from being heard in either civil or erty, it is clear from the Committee’s comments criminal cases. that it believes that the minimum age should be Civil cases involving children include those con- set in relation to the other basic principles of the cerned with custody and the upbringing of chil- Convention, and in particular to articles 2, 3 and dren, including separation from parents, adoption 6; and the Committee has expressed concern at and so forth. restriction of the liberty of young children. In its Implementation Handbook for the Convention on the Rights of the Child 10

39 Criminal cases involving children include those in modification of family relations, which the child gives evidence, including when the adoption, guardianship child is being prosecuted for a criminal offence; Article 8 of the Convention requires respect for cases in which others are being prosecuted for the right of the child to preserve his or her iden- offences against the child; and cases involving tity, including nationality, name and family rela- other parties when the child is a witness. In rela- tions. The Convention does not suggest that there tion to children alleged as or accused of having should be a minimum age for recognition of this infringed the penal law, under article 40(2)(b)(iv) right. It appears that very few States have defined they must not be compelled to give testimony. in legislation arrangements for the child’s consent in relation to all aspects of changing identity. The Committee has noted the importance of enabling children to give evidence in cases Many States indicated in Initial Reports that they involving the prevention of violence and exploita- have established an age at which the child has a i c tion, including the sexual exploitation of children. t l r e right to consent or refuse consent to his or her a It has commended States that have made special adoption. The Committee has welcomed moves arrangements to hear evidence from children in to reduce the age at which the child’s consent is such cases (see article 19, page 269). required for adoption (see article 21, page 295) . In 2005 the Economic and Social Council of the Having access to information about United Nations adopted Guidelines on Justice in the child’s biological family Matters Involving Child Victims and Witnesses Article 7 of the Convention on the Rights of the of Crime “as a useful framework that could assist Child requires that the child has “as far as pos- Member States in enhancing the protection of sible, the right to know ... his or her parents”. The child victims and witnesses in the criminal jus- right to knowledge of biological parents is of par- tice system” (Economic and Social Council reso- ticular importance to adopted children and chil- lution 2005/20, 22 July 2005). dren born through artificial means of conception. In many States, legislation places limits both on Lodging complaints and seeking the information made available to the child and redress without parental consent the age at which any information is available to before a court or other authority the child. Implementation of this right depends The Committee on the Rights of the Child has on sufficient information being included in the indicated that the full implementation of article registration of the child’s birth and on how the 12 requires the child to have access to complaints information is made accessible to the child (see procedures (see page 158). The child’s ability to article 7, page 105). In many States adopted lodge complaints and seek redress without paren- children up to the age of 18 do not have a right tal consent before a court is particularly impor- of access to information about their biologi- tant in relation to complaints concerning violence cal parents, which the Committee has suggested or exploitation, including sexual exploitation, breaches article 7 (see article 7, page 107). within the family. There is no suggestion in the Convention that children below a certain age Legal capacity to inherit, to conduct should not be able to lodge complaints or apply to property transactions courts or other bodies for redress, with or without In some States the capacity to inherit and to con- parental consent; any decision to exclude a child duct property transactions is achieved only with from such rights would have to be made in the majority and/or on marriage; in others, vari- context of the general principles including non- ous ages are set in legislation. Where minimum discrimination and best interests. ages are set, they should be consistent with the Participating in administrative Convention’s general principles, in particular of and judicial procedures affecting non-discrimination and the best interests of the the child child. As noted above, article 12(2) of the Convention on The Committee on the Elimination of Discri- the Rights of the Child requires that the child is mination against Women (CEDAW), in a General provided with an opportunity to be heard in any Recommendation, notes that, in many countries, judicial and administrative proceedings affecting law and practice concerning inheritance and him or her. The Convention sets no age limit on property result in serious discrimination against this right (see article 12, page 153 and article 9, women: “... Women may receive a smaller share page 129). of the husband’s or father’s property at his death Giving consent to change of than would widowers and sons” (Committee on the Elimination of Discrimination against identity, including change of name, DEFINITION OF THE CHILD 11

40 Women, General Recommendation No. 21, Some States now have legislation specifically 1994, HRI/GEN/1/Rev.8, para. 35, p. 314). Such upholding the child’s right to freedom of religion. discrimination may also affect those under 18 In others, an age is specified when decisions con- years old, in which case it raises an issue under cerning religious upbringing and education trans- the Convention on the Rights of the Child. The fer from the parent to the child. In States in which Committee on the Rights of the Child has com- religious education is allowed in schools, there mented on discrimination in inheritance (see art- may be provisions in legislation allowing students icle 2, page 31). to opt out of particular religious teaching and/or worship, and/or giving them a right to alternative Legal capacity to create or join teaching. Article 14(2) requires States to respect associations the rights and duties of parents “to provide direc- The child’s right to freedom of association is rec- tion to the child in the exercise of his or her right ognized in the Convention on the Rights of the in a manner consistent with the evolving capaci- i c t l r e Child under article 15, and the Committee has a ties of the child” (see article 14, page 188). emphasized that this right is linked to articles 12 Consumption of alcohol and other and 13 in realizing the child’s rights to partici- controlled substances pation. Article 33 requires States to take “all appropri- Some States indicated in their Initial Reports that ate measures, including legislative, administra- there is an age below which children are not per- tive, social and educational measures, to protect mitted to join associations or to do so without the children from the illicit use of narcotic drugs agreement of their parents. The Convention pro- and psychotropic substances as defined in the vides no support for arbitrary limitations on the relevant international treaties...” Many States child’s right to freedom of association (see article have made it an offence to sell alcohol and 15, page 197). tobacco products and any other controlled sub- Choosing a religion; attending stances to children below a certain age. The set- religious education in school ting of such ages should be related to the basic principles of articles 2, 3 and 6 (see article 33, Article 14 requires respect for the child’s right to freedom of thought, conscience and religion. page 503). Reporting guidelines: see Guidelines for Periodic Reports (Revised 2005) (CRC/C/58/Rev.1), Appendix 3, page 699. Implementation Handbook for the Convention on the Rights of the Child 12

41 i c t l r e a Implementation Checklist • General measures of implementation Have appropriate general measures of implementation been taken in relation to article 1, including: identification and coordination of the responsible departments and agencies at all ■ ■ all government levels of government (definition of the child in article 1 is relevant to ) departments ■ identification of relevant non-governmental organizations/civil society partners? ■ a comprehensive review to ensure that all legislation, policy and practice is ■ ■ compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation ■ which includes where necessary the identification of goals and indicators of ■ progress? ■ ■ which does not affect any provisions which are more conducive to the rights of the child? ■ which recognizes other relevant international standards? ■ ■ ■ which involves where necessary international cooperation? (Such measures may be a part of an overall governmental strategy for implementing the Convention as a whole.) ■ ■ budgetary analysis and allocation of necessary resources? development of mechanisms for monitoring and evaluation? ■ ■ ■ ■ making the implications of article 1 widely known to adults and children? ■ development of appropriate training and awareness-raising (in relation to article ■ 1 likely to include the training of all those working with or for children, and education for parenting )? • Specific issues in implementing article 1 Does the State define childhood for the purposes of the Convention as beginning ■ ■ at birth? for some purposes before birth? ■ ■ ■ Does a child acquire all adult rights by his or her 18th birthday or earlier? ■ Do all children acquire the right to vote and to stand for election at 18? ■ ■ ■ before 18? ■ Are protective minimum ages, compatible with the general principles of non- discrimination and best interests, defined in legislation for the following: beginning and end of compulsory education? ■ ■ admission to employment, including ■ ■ ■ ■ hazardous work? part-time work? ■ ■ ■ ■ full-time work? DEFINITION OF THE CHILD 13

42 i c t l r e a How to use the checklist, see page XIX ■ giving a valid consent to sexual activities? ■ access to certain categories of violent/pornographic media? ■ ■ ■ buying/consuming alcohol or other controlled substances? ■ ■ ■ voluntary enlistment in the armed forces? criminal responsibility? ■ ■ ■ deprivation of liberty in any situation, including in the juvenile justice ■ system;immigration, including asylum seeking; and in education, welfare and health institutions? ■ Are capital punishment and life imprisonment prohibited for offences committed ■ below the age of 18? ■ Is the minimum age for marriage 18 for both girls and boys? ■ ■ ■ Is conscription into the armed forces prohibited below the age of 18? ■ ■ Does the State take all feasible measures to ensure that under-18-year-olds do not take a direct part in hostilities? ■ Is any general principle established in legislation that once a child has acquired ■ “sufficient understanding”, he or she acquires certain rights of decision-making? ■ Are there mechanisms for assessing the capacity/competence of a child? ■ ■ Can a child appeal against such assessments? ■ ■ Are there other ways in which legislation respects the concept of the child’s ■ “evolving capacities”? Do children acquire rights, either at prescribed ages, or in defined circumstances, for ■ ■ having medical treatment or surgery without parental consent? giving testimony in court ■ in civil cases? ■ ■ ■ in criminal cases? ■ ■ leaving home without parental consent? ■ ■ choosing residence and contact arrangements when parents separate? ■ acquiring a passport? ■ ■ lodging complaints and seeking redress before a court or other relevant ■ authority without parental consent? ■ ■ participating in administrative and judicial proceedings affecting the child? ■ ■ giving consent to change of identity, including ■ ■ change of name? ■ ■ nationality? ■ modification of family relations? ■ ■ adoption? ■ ■ ■ guardianship? ■ ■ having access to information concerning his or her biological origins (e.g. in cases of adoption, artificial forms of conception, etc.)? ■ having legal capacity to inherit? ■ ■ ■ conducting property transactions? ■ ■ creating and joining associations? Implementation Handbook for the Convention on the Rights of the Child 14

43 i c t l r e a see page XIX How to use the checklist, ■ choosing a religion? ■ ■ ■ choosing to attend/not attend religious education in school? ■ ■ joining a religious community? Where such minimum ages are defined in legislation, have they been ■ ■ reviewed in the light of the Convention’s basic principles, in particular of non- discrimination, best interests of the child and right to maximum survival and development (articles 2,3 and 6)? tainment of majority, acquisition of specific ■ ■ Do the legal provisions relating to the at rights at a particular age or set minimum ages, as mentioned above, apply to all children without discrimination on any ground? The Convention is indivisible and its articles are interdependent. Reminder : The definition of the child in article 1 is relevant to the implementation of each article of the Convention. Particular regard should be paid to: The general principles Article 2: all rights to be recognized for each child in the jurisdiction without discrimination on any ground Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 6: right to life and maximum possible survival and development Article 12: respect for the child’s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child Closely related articles Articles whose implementation is particularly related to that of article 1 include: Article 5: respect for the child’s “evolving capacities” (also article 14(2)) Article 24: access to medical advice and counselling; consent to treatment Article 28: ages for compulsory education Article 32: setting of ages for admission to employment Article 34: age of sexual consent Article 37: no capital punishment or life imprisonment for offences committed below the age of 18 Article 38: minimum age for recruitment into armed forces and participation in hostilities Article 40: age of criminal responsibility Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict DEFINITION OF THE CHILD 15

44 UNICEF/DOI93-1185/Horner

45 c l i t e r a Non- discrimination ... Text of Article 2 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. he first paragraph of article 2, along “any distinction, exclusion, restriction or prefer- with article 3(2) and article 4, sets out ence which is based on any ground such as race, the fundamental obligations of States colour, sex, language, religion, political or other Parties in relation to the rights outlined T opinion, national or social origin, property, birth in the remainder of the Convention on the Rights or other status, and which has the purpose or of the Child – to “respect and ensure” all the effect of nullifying or impairing the recognition, rights in the Convention to all children in their enjoyment or exercise by all persons, on an equal jurisdiction without discrimination of any kind. footing, of all rights and freedoms”. Summary “Non-discrimination” has been identified by the The non-discrimination principle does not bar Committee on the Rights of the Child as a general affirmative action, the legitimate differentia- principle of fundamental importance for imple- tion in treatment of individual children; a Human mentation of the whole Convention. In a number Rights Committee General Comment empha- of General Comments, the Committee has set out sizes that States will often have to take affirma- the implications of applying the principle in rela- tive action to diminish or eliminate conditions tion to various issues and groups of children. The that cause or help to perpetuate discrimination. Committee has emphasized the importance of In its Preamble, the Convention on the Rights collecting disaggregated data in order to monitor of the Child recognizes that “in all countries in the extent of discrimination. the world, there are children living in exception- In a relevant General Comment, the Human ally difficult conditions, and that such children Rights Committee proposes that the term “dis- need special consideration...” In this respect, crimination” should be understood to imply the Committee on the Rights of the Child has NON-DISCRIMINATION 17

46 “Discrimination on the basis of any of the consistently underlined the need to give special grounds listed in article 2 of the Convention, attention to disadvantaged and vulnerable groups. whether it is overt or hidden, offends the The implications of discrimination in relation to human dignity of the child and is capable of particular rights of the child are covered in this undermining or even destroying the capacity of the child to benefit from educational under the other cor- Implementation Handbook opportunities. While denying a child’s access to responding Convention articles. Certain articles educational opportunities is primarily a matter set out special provisions for children particularly which relates to article 28 of the Convention, prone to forms of discrimination, for example, there are many ways in which failure to children with disabilities (article 23), and refugee comply with the principles contained in article children (article 22). Because discrimination is 29(1) can have a similar effect. To take an at the root of various forms of child exploitation, extreme example, gender discrimination can other articles to protect the child call for action be reinforced by practices such as a curriculum i c t l r e that involves challenging discrimination. which is inconsistent with the principles of a gender equality, by arrangements which Paragraph 2 of article 2 asserts the need to pro- limit the benefits girls can obtain from the tect children from all forms of discrimination or educational opportunities offered, and by punishment on the basis of the status or activities unsafe or unfriendly environments which of their parents and others close to them. ■ discourage girls’ participation. Discrimination against children with disabilities is also pervasive in many formal educational systems Definition of “discrimination” and in a great many informal educational settings, including in the home. Children The term “discrimination” is not defined in the with HIV/AIDS are also heavily discriminated Convention, nor is it defined in the International against in both settings. All such discriminatory Covenant on Civil and Political Rights, which practices are in direct contradiction with the includes a similar non-discrimination principle. requirements in article 29(1)(a) that education The Committee on the Rights of the Child has be directed to the development of the child’s asserted the fundamental importance of article personality, talents and mental and physical 2 and raises the issue of non-discrimination in abilities to their fullest potential.” (Committee on the Rights of the Child, General Comment No. 1, its consideration of each State Party report. The 2001, CRC/GC/2001/1, para. 10) Committee has not, as at June 2007, issued any interpretative General Comment on article 2. But The General Comment also underlines, in par- other General Comments have expanded on the ticular, the importance of education in combating theme of discrimination in relation to their partic- racism: ular subject-matter. In its General Comment No. “Racism and related phenomena thrive where 5 on “General measures of implementation for there is ignorance, unfounded fears of racial, the Convention on the Rights of the Child (arts. 4, ethnic, religious, cultural and linguistic or 42 and 44, para. 6)”, the Committee notes in rela- other forms of difference, the exploitation of tion to article 2: prejudices, or the teaching or dissemination of distorted values. A reliable and enduring “This non-discrimination obligation requires antidote to all of these failings is the States actively to identify individual children provision of education which promotes an and groups of children the recognition and understanding and appreciation of the values realization of whose rights may demand reflected in article 29(1), including respect special measures. For example, the Committee for differences, and challenges all aspects of highlights, in particular, the need for data discrimination and prejudice. Education should collection to be disaggregated to enable thus be accorded one of the highest priorities discrimination or potential discrimination to in all campaigns against the evils of racism be identified. Addressing discrimination may (Committee on the and related phenomena.” require changes in legislation, administration Rights of the Child, General Comment No. 1, 2001, and resource allocation, as well as educational CRC/GC/2001/1, para. 11; see also article 29, measures to change attitudes. It should be page 447.) emphasized that the application of the non- discrimination principle of equal access to In its General Comment No. 7 on “Implementing rights does not mean identical treatment.” child rights in early childhood”, the Committee (Committee on the Rights of the Child, General urges States Parties to identify the implications Comment No. 5, 2003, CRC/GC/2003/5, para. 12) of the non-discrimination principle for realizing rights in early childhood: In its first General Comment on “The aims of education”, the Committee explores discrimina- “Article 2 means that young children in tion in the overall context of education: general must not be discriminated against on Implementation Handbook for the Convention on the Rights of the Child 18

47 any grounds, for example where laws fail to human rights instruments and proposes a general offer equal protection against violence for definition. all children, including young children. Young Under article 2 of the International Covenant on children are especially at risk of discrimination Civil and Political Rights, “Each State Party to because they are relatively powerless and the present Covenant undertakes to respect and to depend on others for the realization of their rights. ensure to all individuals within its territory and “Article 2 also means that particular groups subject to its jurisdiction the rights recognized in of young children must not be discriminated the present Covenant, without distinction of any against. Discrimination may take the form of kind, such as race, colour, sex, language, religion, reduced levels of nutrition; inadequate care political or other opinion, national or social ori- and attention; restricted opportunities for gin, property, birth or other status.” play, learning and education; or inhibition of free expression of feelings and views. Article 24(1) of the Covenant also requires that i c t l r Discrimination may also be expressed e a “Every child shall have, without any discrimi- through harsh treatment and unreasonable nation as to race, colour, sex, language, reli- expectations, which may be exploitative or gion, national or social origin, property or birth, (Committee on the Rights of the Child, abusive...” the right to such measures of protection as are General Comment No. 7, 2005, CRC/C/GC/7/Rev.1, required by his status as a minor, on the part of para. 11) his family, society and the State...” The Committee goes on to give some illustrative And the Covenant’s article 26 states: “All persons examples (see box, page 20). It also expresses con- are equal before the law and are entitled with- cern about discrimination in access to services: out any discrimination to the equal protection “Potential discrimination in access to quality of the law. In this respect, the law shall prohibit services for young children is a particular any discrimination and guarantee to all persons concern, especially where health, education, equal and effective protection against discrimi- welfare and other services are not universally nation on any ground such as race, colour, sex, available and are provided through a combination of state, private and charitable language, religion, political or other opinion, organizations... As a first step, the Committee national or social origin, property, birth or other encourages States Parties to monitor the status.” availability of and access to quality services The Human Rights Committee, in its 1989 that contribute to young children’s survival General Comment, emphasizes that “non-dis- and development, including through systematic data collection, disaggregated in crimination, together with equality before the law terms of major variables related to children’s and equal protection of the law without any dis- and families’ background and circumstances. crimination, constitute a basic and general prin- As a second step, actions may be required ciple relating to the protection of human rights”. that guarantee that all children have an equal The Human Rights Committee notes that “the opportunity to benefit from available services. term ‘discrimination’ as used in the Covenant More generally, States Parties should raise should be understood to imply any distinction, awareness about discrimination against young exclusion, restriction or preference which is based children in general, and against vulnerable on any ground such as race, colour, sex, language, groups in particular.” (Committee on the Rights religion, political or other opinion, national or of the Child, General Comment No. 7, 2005, CRC/C/GC/7/Rev.1, para. 12) social origin, property, birth or other status, and which has the purpose or effect of nullifying or (See also General Comment No. 3 on “HIV/ impairing the recognition, enjoyment or exercise AIDS and the rights of the child”, paras. 7 to by all persons, on an equal footing, of all rights 9, see page 364; General Comment No. 4 on and freedoms”. “Adolescent health and development in the con- text of the Convention on the Rights of the The Human Rights Committee quotes article 1 of Child”, para. 6, see page 368; General Comment the International Convention on the Elimination No. 9 on “The rights of children with disabili- of All Forms of Racial Discrimination and art- ties”, paras. 8 to 10, see page 329. For full text of icle 1 of the Convention on the Elimination of All General Comments see www.ohchr.org/english/ Forms of Discrimination against Women which bodies/crc/comments.htm.) use a similar definition. The Human Rights Committee, which oversees The Human Rights Committee goes on to empha- the International Covenant on Civil and Political size that the “enjoyment of rights and freedoms on Rights, issued a General Comment in 1989 which an equal footing, however, does not mean identi- cal treatment in every instance”. The principle of notes definitions of discrimination in other NON-DISCRIMINATION 19

48 Discrimination in early childhood In its General Comment No. 7 on “Implementing child rights in early childhood”, the Committee provides examples of the forms that discrimination can take: “Discrimination against girl children is a serious violation of rights, affecting their survival • and all areas of their young lives as well as restricting their capacity to contribute positively to society. They may be victims of selective abortion, genital mutilation, neglect and infanticide, including through inadequate feeding in infancy. They may be expected to undertake excessive family responsibilities and deprived of opportunities to participate in early childhood and pri- mary education; Discrimination against children with disabilities reduces survival prospects and quality of life. • i c t l r e These children are entitled to the care, nutrition, nurturance and encouragement offered other a children. They may also require additional, special assistance in order to ensure their integra- tion and the realization of their rights; Discrimination against children infected with or affected by HIV/AIDS deprives them of the • help and support they most require. Discrimination may be found within public policies, in the provision of and access to services, as well as in everyday practices that violate these children’s rights...; Discrimination related to ethnic origin, class/caste, personal circumstances and lifestyle, or • political and religious beliefs (of children or their parents) excludes children from full participa- tion in society. It affects parents’ capacities to fulfil their responsibilities towards their children. It affects children’s opportunities and self-esteem, as well as encouraging resentment and con- f lict among children and adults; Young children who suffer multiple discrimination (e.g., related to ethnic origin, social and cul- • tural status, gender and/or disabilities) are especially at risk. Young children may also suffer the consequences of discrimination against their parents, for • example if children have been born out of wedlock or in other circumstances that deviate from traditional values, or if their parents are refugees or asylum seekers. “States Parties have a responsibility to monitor and combat discrimination in whatever forms it – within families, communities, schools or other institutions...” takes and wherever it occurs (Committee on the Rights of the Child, General Comment No. 7, “Implementing child rights in early childhood”, 2005, CRC/C/GC/7/Rev.1, paras. 11 and 12) national or social origin, property or birth. In this equality sometimes requires States Parties “to take affirmative action in order to diminish or elimi- connection, the Committee notes that, whereas nate conditions which cause or help to perpetuate non-discrimination in the enjoyment of the rights discrimination prohibited by the Covenant.” And provided for in the Covenant also stems, in the finally, it states that “not every differentiation of case of children, from article 2 and their equality treatment will constitute discrimination, if the cri- before the law from article 26, the non-discrimi- teria for such differentiation are reasonable and nation clause contained in article 24 relates spe- objective and if the aim is to achieve a purpose cifically to the measures of protection referred to which is legitimate under the Covenant”. (Human in that provision. Reports by States Parties should Rights Committee, General Comment No. 18, indicate how legislation and practice ensure that 1989, HRI/GEN/1/Rev.8, paras. 7 to 13, pp. 187 measures of protection are aimed at removing all and 188) discrimination in every field, including inheri- tance, particularly as between children who In relation to discrimination against children and are nationals and children who are aliens, or as the Covenant, another Human Rights Committee between legitimate children and children born out General Comment, also issued in 1989, states: of wedlock.” (Human Rights Committee, General “The Covenant requires that children should be Comment No. 17, 1989, HRI/GEN/1/Rev.8, para. protected against discrimination on any grounds 5, p. 186) such as race, colour, sex, language, religion, Implementation Handbook for the Convention on the Rights of the Child 20

49 identified general principles in the Convention “States Parties shall respect (arts. 2, 3, 6, and 12). The Committee and ensure the rights set forth welcomes the development of consolidated in the present Convention...” children’s rights statutes, which can highlight and emphasize the Convention’s principles. But The language of article 2 and its interpretation by the Committee emphasizes that it is crucial in the Committee on the Rights of the Child empha- addition that all relevant ‘sectoral’ laws (on size that the obligation of States Parties to pre- education, health, justice and so on) reflect vent discrimination is an active one, requiring, consistently the principles and standards of the Convention.” (Committee on the Rights of like other aspects of implementation, a range of the Child, General Comment No. 5, 2003, measures that include review, strategic planning, CRC/GC/2003/5, para. 22) legislation, monitoring, awareness-raising, educa- tion and information campaigns, and evaluation The Committee has indicated also in Concluding of measures taken to reduce disparities. i c Observations on many States’ reports that, as t l r e a with the other articles identified as general prin- A commentary published in the Bulletin of Human ciples, the non-discrimination principle should be asserts that in terms of international law, Rights written into legislation and that all the possible the obligation “to respect” requires States “to grounds for discrimination spelled out in article refrain from any actions which would violate any 2 should be ref lected in the legislation. And it has of the rights of the child under the Convention... emphasized that there should be the possibility to The obligation ‘to ensure’ goes well beyond that challenge discrimination before the courts. of ‘to respect’, since it implies an affirmative obligation on the part of the State to take what- In some States, a non-discrimination clause is ever measures are necessary to enable individuals written into the constitution and therefore applies to enjoy and exercise the relevant rights” (Philip to all children. In others, non-discrimination prin- Alston, ‘The legal framework of the Convention ciples are included in human rights legislation Bulletin of Human on the Rights of the Child’, with reference to children. The Convention, like , 91/2, p. 5). Rights other human rights instruments, does not require States to have a constitution. But where there is An “active” approach a constitution, its provisions must be consistent to implementing the principle with the Convention, or, in the terms of article 41, The Committee on the Rights of the Child has must be more conducive to the realization of the constantly stressed the need for an “active” rights of the child. approach to implementation and in particular to non-discrimination. It underscored this point in The Committee has also emphasized the need its comments on the first Initial Report submitted for States to review their constitutions and all to it, in 1993: existing legislation to ensure that these do not “The Committee emphasizes that the principle involve discrimination; often, in the same com- of non-discrimination, as provided for under ments, the Committee has drawn attention to article 2 of the Convention, must be vigorously particular examples of existing discrimination. applied, and that a more active approach For example: should be taken to eliminate discrimination “The Committee is concerned about against certain groups of children, most discriminatory attitudes towards certain notably girl children.” (Bolivia CRC/C/15/Add.1, groups of children such as disabled children, para. 14) refugee and IDPs’ [internally displaced The implementation of article 2 must be inte- persons’] children, street children and children grated into the implementation of all other art- infected with HIV/AIDS. icles – ensuring that all the rights mentioned are “In accordance with article 2 of the Convention, the Committee recommends that available to all children without discrimination of the State Party increase its efforts to adopt any kind. a proactive and comprehensive strategy to Reviewing legislation and writing eliminate discrimination on any grounds non-discrimination principle into against all vulnerable groups throughout the country.” (Azerbaijan CRC/C/AZE/CO/2, paras. 24 legislation and 25) In its General Comment No. 5 on “General mea- sures of implementation for the Convention on “The Committee notes with appreciation the Rights of the Child (arts. 4, 42 and 44, para. that article 7 of the Constitution of Lebanon 6)”, the Committee promotes the principle of non-discrimination. However, it notes with concern that the “... emphasizes, in particular, the importance Constitution and domestic laws guarantee of ensuring that domestic law reflects the NON-DISCRIMINATION 21

50 that all children have equal access to such the equal status only to Lebanese children but leave, for example, foreign children (The former assistance without discrimination.” and refugee and asylum-seeking children Yugoslav Republic of Macedonia CRC/C/15/Add.118, without such protection. It is concerned at the para. 17) de facto discrimination faced by persistent In 2002, the Committee held a Day of General children with disabilities, the aforementioned Discussion on the theme “The private sector as foreign, refugee and asylum-seeking service provider and its role in implementing children, Palestinian children, children living child rights”. Recommendations adopted by the in poverty, children in conflict with the law and children living in rural areas, especially Committee following the Day emphasized the with regard to their access to adequate social importance of the non-discrimination principle and health services and educational facilities. in any process of privatization. The State con- The Committee also notes with concern tinues to be bound by its obligations under the the reports of the expressions of racial Convention, even when the provision of services i c t l r e discrimination and xenophobia in the a is delegated to non-state actors: State Party. “... For instance, privatization measures may “The Committee recommends that the State have a particular impact on the right to health Party strengthen its efforts to eliminate (art. 24) and the right to education (arts. 28 discrimination against children with and 29), and States Parties have the obligation disabilities, foreign, refugee and asylum- to ensure that privatization does not threaten seeking children, Palestinian children, children accessibility to services on the basis of criteria living in poverty, children in conflict with the prohibited, especially under the principle of law and children living in rural areas and other non-discrimination...” (Committee on the Rights vulnerable groups by: of the Child, Report on the thirty-first session, (a) Reviewing domestic laws with a view to September/October 2002, CRC/C/121, page 153) ensure that children in the Lebanese territory shall be treated equally and as individuals; The Committee has emphasized that the princi- (b) Ensuring that these children have equal ple of non-discrimination applies equally to pri- access to health and social services and to vate institutions and individuals as well as to the quality education and that services used by State, and that this must be reflected in legisla- these children are allocated sufficient financial tion: and human resources; (c) Enhancing monitoring of programmes “The Committee notes with concern that ... and services implemented by local authorities the principle of non-discrimination does not with a view to identifying and eliminating apply to private professionals or institutions...” disparities; and (Zimbabwe CRC/C/15/Add.55, para. 12) (d) Preventing racial discrimination and Other active measures to challenge xenophobia targeting certain foreigner discrimination groups, including refugee and asylum-seeking children.” (Lebanon CRC/C/LBN/CO/3, paras.27 The Committee on the Rights of the Child rec- and 28) ognizes that the reflection of the principle of non-discrimination in the law, while fundamen- In examining Initial and Periodic Reports the tal to implementation, is not in itself sufficient; Committee frequently comes across instances in other strategies are needed to implement the prin- which some forms of discrimination are written ciple, in particular to challenge traditional and into existing legislation. A particularly common other discriminatory attitudes and customs. The example of discrimination by gender is legisla- Committee has identified traditional attitudes and tion defining different minimum ages for boys customs that perpetuate discrimination in many and girls to marry (for further discussion, see societies, whether the discrimination is reflected below, pages 28 and 29 and article 1, page 8); in legislation or not. For example: another example is the discrimination inherent “The Committee recommends that the in some state legislation dealing with children of State Party make greater efforts to ensure married parents and those born out of marriage, that all children within its jurisdiction enjoy referred to as non-marital children (see below, without discrimination, all the rights set out page 24). Policies intended to discourage popula- in the Convention, including through public tion growth by limiting the size of families must education programmes and the eradication not discriminate against individual children: of social misconceptions, in accordance with article 2;...” (Niger CRC/C/15/Add.179, para. 28. “In the light of article 2 of the Convention, the See also, for example, El Salvador CRC/C/15/Add.9, Committee recommends that the State Party para. 12; Jamaica CRC/C/15/Add.32, para. 11; find alternative means to implement the three Bangladesh CRC/C/15/Add.74, paras. 15 and 35; child policy, other than excluding the fourth and India CRC/C/15/Add.115, para. 31.) child from social service benefits, and ensure Implementation Handbook for the Convention on the Rights of the Child 22

51 In comments on reports, the Committee has pro- must consider other grounds that might cause dis- crimination. The Guidelines for Periodic Reports posed various forms of action, including: (Revised 2005) requests disaggregated data studies of discrimination – the Committee • under many articles, for example by age, gender, emphasizes frequently the importance of region, rural/urban area, social and ethnic origin collecting disaggregated statistics and other (see article 4, page 64). The purpose is to ensure information in order to identify discrimina- that States Parties have sufficient information to tion in access to rights (see article 4, page 64, judge whether there is discrimination in imple- for details); menting the article or provision concerned. development of comprehensive strategies; • The consideration of the implications of each and every article must include the consideration of information and awareness-raising cam- • possible discrimination against individual chil- paigns, including public campaigns to chal- dren or groups of children. Article 2 highlights lenge discriminatory attitudes and practices i c t l r e a the “double jeopardy” many children face, dis- – a “comprehensive and integrated public criminated against not only on the grounds of information campaign”; their age and status but also on other specific involvement of political, religious and com- • grounds such as their sex or race or disability. munity leaders in inf luencing attitudes and discouraging discrimination. “... to each child within their Implementation “irrespective of jurisdiction...” budgetary constraints” Article 2 emphasizes that all the rights in the The Committee has emphasized that implemen- Convention on the Rights of the Child must tation of the general principles in articles 2 and 3 apply to all children in the State, including visi- of the Convention must not be “made dependent tors, refugees, children of migrant workers and on budgetary constraints”. In practice, poverty is those in the State illegally. In General Comment clearly a major cause of discrimination affecting No. 6 on “Treatment of unaccompanied and sepa- children. The Committee’s intention is to ensure rated children outside their country of origin”, the that non-discrimination and the best interests of Committee states: children are primary considerations in setting budgets and allocating available resources. The “... the principle of non-discrimination, in all its facets, applies in respect to all dealings Committee consistently emphasizes the need for with separated and unaccompanied children. affirmative action – positive discrimination – on In particular, it prohibits any discrimination behalf of disadvantaged and vulnerable groups. on the basis of the status of a child as For example : being unaccompanied or separated, or as “The Committee recommends that the being a refugee, asylum seeker or migrant. State Party pay particular attention to This principle, when properly understood, the implementation of article 4 of the does not prevent, but may indeed call for, Convention by increasing and prioritizing differentiation on the basis of different budgetary allocations to ensure at all levels protection needs such as those deriving from the implementation of the rights of the child age and/or gender. Measures should also be and that particular attention is paid to the taken to address possible misperceptions and protection of the rights of children belonging stigmatization of unaccompanied or separated to vulnerable groups including children with (Committee on the children within society...” disabilities, children affected or/and infected Rights of the Child, General Comment No. 6, 2005, by HIV/AIDS, street children and children CRC/GC/2005/6, para. 18) living in poverty...” (Ghana CRC/C/GHA/CO/2, In States with semi-autonomous provinces and para. 18) territories, the Committee has stressed that dif- Monitoring and evaluation ferences in legislation or other factors must not It is essential to monitor the realization of all cause discrimination in the enjoyment of the rights within the Convention for all children, rights in the Convention for children depending without discrimination. Thus the monitoring on where they live. process and the indicators used must be sensi- In discussions with Canadian Government rep- tive to the various issues specifically mentioned resentatives, a Committee member stated that in the article: race, colour, sex, language, reli- “... under article 2 States Parties were required to gion, political or other opinion, national, eth- ‘respect and ensure’ the rights of children under nic or social origin, property, disability, birth or the terms of the Convention, irrespective of fac- other status. As the wording indicates, the list is tors such as race, sex, or ‘other status’. He took not exhaustive but merely illustrative, and States NON-DISCRIMINATION 23

52 Party submits in its next periodic report, that as implying that the Federal Government information concerning the measures taken was obliged to ensure that equal protection was to extend the Convention to all of its Crown given to the rights of children in all the differ- Dependencies.” (United Kingdom – Isle of Man ent provinces and territories. The Committee had CRC/C/15/Add.134, paras. 4 and 5) been entrusted with the task of monitoring prog- ress made by States Parties in the implementation The Committee has also noted more general dis- of the Convention and was therefore obliged to crimination existing between regions within a ensure that the Convention was applied through- State, which is not caused by legislative differ- out Canada, irrespective of regional differences.” ences. (Canada CRC/C/SR.214, para. 45) “... without discrimination The Committee commented to Canada, and simi- of any kind, irrespective of the larly to other States: child’s or his or her parent’s i c t l r e “Disparities between provincial or territorial a or legal guardian’s race, legislation and practices which affect the implementation of the Convention are a colour, sex, language, religion, matter of concern to the Committee. It seems, political or other opinion, for instance, that the definition of the legal national, ethnic or social status of the children born out of wedlock origin, property, disability, being a matter of provincial responsibility may birth or other status” lead to different levels of legal protection of such children in various parts of the country.” The grounds for discrimination specifically men- (Canada CRC/C/15/Add.37, para. 9) tioned in article 2 of the Convention on the Rights The Committee followed this up again when it of the Child are similar to those stated in the examined Canada’s Second Report: International Covenants on Civil and Political “The Committee urges the Federal Rights and on Economic, Social and Cultural Government to ensure that the provinces and Rights (article 2 in each Covenant), with the addi- territories are aware of their obligations under tion of ethnic origin and disability. the Convention and that the rights in the Convention have to be implemented in all the The Committee has raised concerns where a State’s provinces and territories through legislation constitution or domestic legislation does not bar and policy and other appropriate measures.” discrimination on all the grounds listed in article 2: (Canada CRC/C/15/Add.215, para. 9) “The Committee ... remains concerned that States with “dependent” territories are advised to some of the criteria listed as prohibited ensure that the Convention is extended to all of grounds of discrimination under the them: Convention on the Rights of the Child are “The Committee notes with concern that absent from the State Party constitution. the State Party has not yet extended the “The Committee recommends that the State Convention to all of its Crown Dependencies, Party review the Constitution and other specifically Jersey and Guernsey. relevant national legal instruments, enlarging “The Committee recommends that the State the list of prohibited grounds of discrimination Grounds for discrimination against children The following grounds for discrimination and groups affected by discrimination have been identi- fied by the Committee in its examination of Initial and Periodic Reports (they are listed in no par- ticular order of significance): gender disability race, xenophobia and racism ethnic origin sexual orientation particular castes, tribes “untouchability” language Implementation Handbook for the Convention on the Rights of the Child 24

53 children not registered at birth children born a twin children born on an unlucky day children born in the breech position children born in abnormal conditions a “one-child” or “three-child” policy orphans place of residence distinctions between different provinces/territories/states, etc. rural (including rural exodus) urban i c t l r children living in slums e a children in remote areas and remote islands displaced children homeless children abandoned children children placed in alternative care ethnic minority children placed in alternative care institutionalized children children living and/or working in the streets children involved in juvenile justice system in particular, children whose liberty is restricted children affected by armed conflict working children children subjected to violence child beggars children affected by HIV/AIDS children of parents with HIV/AIDS young single mothers minorities, including Roma children/gypsies/travellers/nomadic children children of indigenous communities non-nationals, including immigrant children illegal immigrants children of migrant workers children of seasonal workers refugees/asylum seekers including unaccompanied refugees children affected by natural disasters children living in poverty/extreme poverty unequal distribution of national wealth social status/social disadvantage/social disparities children affected by economic problems/changes economic status of parents causing racial segregation at school parental property parents’ religion religion-based personal status laws non-marital children (children born out of wedlock) children of single-parent families children of incestuous unions children of marriages between people of different ethnic/religious groups or nationalities NON-DISCRIMINATION 25

54 to include ‘disability, birth, other [than children with disabilities (article 23), chil- political] opinion’, as provided for in article dren of minorities or indigenous communities 2 of the Convention.” (Sierra Leone CRC/C/15/ (article 30), children suffering economic and Add.116, paras. 30 and 31) other exploitation (articles 32, 34, 36), children involved in the juvenile justice system and chil- The Committee has identified numerous grounds dren whose liberty is restricted (articles 37 and for discrimination, not specified in article 2, in its 40), and children in situations of armed conflict examination of States Parties’ reports (see box), (ar ticle 38). including, for example, sexual orientation: “... concern is expressed at the insufficient In recommendations issued following its Day of efforts made to provide against discrimination General Discussion on “The rights of indigenous based on sexual orientation. While the children” in 2003, the Committee calls on States Committee notes the Isle of Man’s intention Parties to reduce the legal age for consent to i c t “... to implement fully article 2 of the l r e homosexual relations from 21 to 18 years, a Convention and take effective measures, it remains concerned about the disparity including through legislation, to ensure that that continues to exist between the ages indigenous children enjoy all of their rights for consent to heterosexual (16 years) and equally and without discrimination, including homosexual relations. equal access to culturally appropriate services “It is recommended that the Isle of Man including health, education, social services, take all appropriate measures, including of a housing, potable water and sanitation”. legislative nature, to prevent discrimination (Committee on the Rights of the Child, Report on based on the grounds of sexual orientation the thirty-fourth session, September/October 2003, and to fully comply with article 2 of the CRC/C/133, p. 134 (United Kingdom – Isle of Man Convention.” CRC/C/15/Add.134, paras. 22 and 23. See also The Committee also calls for education and train- United Kingdom – Overseas Territories CRC/C/15/ ing for relevant professionals working with and Add.135, paras. 25 and 26.) for indigenous children on the Convention and the The Committee also raises discrimination on rights of indigenous peoples. It also recommends grounds of sexual orientation in the context of the development of awareness-raising campaigns, HIV/AIDS, in its General Comment No. 3 on with the full participation of indigenous commu- “HIV/AIDS and the rights of the child”: nities and children, including through the mass media, to combat negative attitudes towards and “Of concern also is discrimination based on sexual orientation. In the design of HIV/AIDS- misperceptions about indigenous peoples (CRC/ related strategies, and in keeping with their C/133, p. 134). obligations under the Convention, States The World Conference against Racism, Racial Parties must give careful consideration to Discrimination, Xenophobia and Related prescribed gender norms in their societies with a view to eliminating gender-based Intolerance, held in Durban (South Africa) in discrimination as these norms impact on the August 2001, provides a new global agenda to vulnerability of both girls and boys to HIV/ challenge discrimination on such grounds (A/ (Committee on the Rights of the Child, AIDS.” CONF.189/12. See box, opposite). As one con- General Comment No. 3, 2003, CRC/GC/2003/3, tribution to preparations for the Conference, the para. 8) Committee drafted its first General Comment The Committee also notes in the General on “The aims of education” (see article 29, Comment that it interprets “other status” under page 439). In its Concluding Observations, the article 2 to include HIV/AIDS status of the child Committee asks States to provide in their next or his/her parents (para. 9). It goes on to recom- Periodic Report information on measures and mend that States Parties should programmes, relevant to the Convention, under- “... review existing laws or enact new taken by the State Party in order to follow up the legislation with a view to implementing fully Durban Declaration and Programme of Action. article 2 of the Convention, and in particular Legitimate forms of discrimination to expressly prohibiting discrimination based on real or perceived HIV/AIDS status so as to As indicated above (page 22), the bar on discrimi- guarantee equal access for all children to all nation of any kind does not outlaw legitimate dif- (CRC/GC/2003/3, para. 40(c)) relevant services...” ferentiation between children in implementation – for example to respect the “evolving capacities” Other Convention articles highlight groups of of children and to give priority, “special consider- children who may suffer particular forms of dis- ation” or affirmative action to children living in crimination, for example children without fami- lies (article 20), refugee children (article 22), exceptionally difficult conditions. Implementation Handbook for the Convention on the Rights of the Child 26

55 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance The Declaration and Programme of Action of the World Conference (Durban, South Africa, September 2001) notes with concern the large number of children and young people, particularly girls, among the victims of racism, racial discrimination, xenophobia and related intolerance and goes on to stress “the need to incorporate special measures, in accordance with the principle of the best interests of the child and respect for his or her views, in programmes to combat racism, racial discrimination, xenophobia and related intolerance, in order to give priority attention to the rights and the situation of children and young people who are victims of these practices” (Declaration, para. 72). i c The Declaration and Programme of Action cover many issues relevant to children’s rights, includ- t l r e a ing: the rights of children belonging to ethnic, religious or linguistic minorities or who are indig- enous; victims of trafficking; links between child labour and poverty and racial discrimination; the influence on children and young people of new information technologies when used to propagate racism, and so on. The Declaration underlines “the links between the right to education and the struggle against rac- ism, racial discrimination, xenophobia and related intolerance and the essential role of education, including human rights education and education which is sensitive to and respects cultural diver- sity, especially amongst children and young people, in the prevention and eradication of all forms of intolerance and discrimination” (Declaration, para. 97). The Programme of Action makes detailed recommendations for education, urging States to com- mit themselves to ensuring access without discrimination to education, including access to free primary education for all children, both girls and boys. States should ensure equal access to educa- tion for all in law and in practice, and refrain from any legal or other measures leading to imposed racial segregation in access to schooling (Programme of Action, paras. 121 and 122). The Programme urges States “to encourage the full and active participation of, as well as involve more closely, youth in the elaboration, planning and implementation of activities to fight racism, racial discrimination, xenophobia and related intolerance”, calling upon States, in partnership with non-governmental organizations and other sectors of society, to facilitate both national and inter- national youth dialogue on these issues. States are urged to encourage and facilitate the establish- ment and maintenance of youth mechanisms to combat racism (Programme of Action, paras. 216 and 217). (Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban, South Africa, 21 August – 8 September 2001, A/CONF.189/12) that such children enjoy their rights under the The Convention’s Preamble recognizes that “in all Convention. countries in the world, there are children living in exceptionally difficult conditions, and that such Discrimination against girls children need special consideration”. Inevitably, The Committee has paid particular attention the category of children living in exception- to the issue of discrimination against girls and ally difficult conditions includes children with frequently expresses concern about persist- widely different problems requiring widely dif- ing discrimination in its successive Concluding ferent remedies. The situation of such children Observations. is best defined in terms of discrimination in the The Committee held a Day of General Discussion realization and enjoyment of various rights in the on “The girl child”, in January 1995, intended to Convention. prepare the contribution of the Committee to the The Committee on the Rights of the Child has Fourth World Conference on Women: Action for consistently commented on the need to identify Equality, Development and Peace, held at Beijing, the most vulnerable and disadvantaged children in September 1995. A recommendation adopted in a State, has expressed concern about their sit- by the Committee, on “Participation and contri- uation and has recommended action to ensure bution” to the Beijing Conference, reaffirmed: NON-DISCRIMINATION 27

56 based on the recognition of human rights as a “... the importance of the Convention on the universal and unquestionable reality, free from Rights of the Child and of its implementation gender bias...” process in decisively improving the situation of girls around the world and ensuring the full The Committee noted that in its Concluding realization of their fundamental rights”. Observations it had recommended: The Committee recalled that the Convention on “... that a comprehensive strategy be the Rights of the Child and the Convention on formulated and effectively implemented the Elimination of All Forms of Discrimination to create awareness and understanding of the principles and provisions of the against Women Convention; launch educational programmes “... have a complementary and mutually to eradicate all forms of discrimination reinforcing nature”, against the girl child; and encourage the and recommended that participation of all segments of society, i c t l including non-governmental organizations. In r e “... they should be an essential framework for a this connection, the Committee had further a forward-looking strategy to promote and suggested that customary, religious and protect the fundamental rights of girls and community leaders may be systematically women and decisively eradicate inequality and involved in the steps undertaken to overcome discrimination.” (Committee on the Rights of the the negative influences of traditions and Child, Report on the eighth session, January 1995, customs.” CRC/C/38, p. 3) Other recommendations the Committee noted The General Discussion report notes that, because included: the Convention on the Rights of the Child is the most widely ratified human rights instrument , ensuring girls effective access to the educa- • tional and vocational system, to enhance their “... it was undoubtedly also the most widely accepted framework for action in favour of rate of school attendance and reduce the drop- the fundamental rights of girls. There was an out rate; undeniable commitment on the part of the eliminating stereotypes in educational mate- international community to use the provisions • rials and in training all those involved in the of the Convention as an agenda for action educational system about the Convention; to identify persisting forms of inequality and discrimination against the girl child, to abolish incorporating the Convention in school and • practices and traditions detrimental to the training curricula; enjoyment of their rights and to define a real forward-looking strategy to promote and eradicating degrading and exploitative images • protect those rights.” of girls and women in the media and advertis- ing. The General Discussion report states: “Addressing the questions of inequality and The Committee also noted that discrimination on the basis of gender did not “... legislative measures send a formal imply that they had to be seen in a complete message that traditions and customs contrary isolation, as if girls were a special group to the rights of the child will no longer be entitled to special rights. In fact, girls are accepted, create a meaningful deterrent simply human beings who should be seen as and clearly contribute to changing attitudes. individuals and not just as daughters, sisters, The Committee had often recommended, wives or mothers, and who should fully enjoy in the light of article 2 of the Convention, the fundamental rights inherent to their that national legislation of States Parties human dignity... Within the larger movement should clearly recognize the principle of for the realization of women’s rights, history equality before the law and forbid gender had clearly shown that it was essential to discrimination, while providing for effective focus on the girl child in order to break down protection and remedies in case of non- the cycle of harmful traditions and prejudices respect. There was also a need to reflect in against women. Only through a comprehensive the legislation the prohibition of harmful strategy to promote and protect the rights of traditional practices, such as genital mutilation girls, starting with the younger generation, and forced marriage, and any other form of would it be possible to build a shared and violence against girls, including sexual abuse. lasting approach and a wide movement of “The Committee had also identified certain advocacy and awareness aimed at promoting areas where law reform should be undertaken, the self-esteem of women and allowing for the in both the civil and penal spheres, such as the acquisition of skills which will prepare them to minimum age for marriage and the linking participate actively in decisions and activities of the age of criminal responsibility to the affecting them. Such an approach must be attainment of puberty.” Implementation Handbook for the Convention on the Rights of the Child 28

57 “... undertake all possible measures to The Committee expressed concern at the situa- reconcile the interpretation of Islamic texts tion of specific vulnerable groups of girls, includ- with fundamental human rights”. (United Arab ing those affected by armed conflict and refugee Emirates CRC/C/15/Add.183, para. 22(b)) children: “In view of the prevailing circumstances of And examining Jordan’s Second Report, it con- emergency surrounding them, such girls do not cluded: really have any time to enjoy their childhood, “Noting the universal values of equality and and the traditional inferiority affecting girls’ tolerance inherent in Islam, the Committee lives is seriously aggravated. Sexual violence observes that narrow interpretations of and abuse and economic exploitation often Islamic texts by authorities, particularly in occur, education is not perceived as a priority areas relating to family law, are impeding the when urgent basic needs must be met, forced enjoyment of some human rights protected and early marriage is seen as a protective under the Convention... i c t measure. And although dramatically affected l r e “In accordance with the findings of the a by emergency situations, girls often cannot Human Rights Committee (CCPR/C/79/ voice their fear and insecurity or share their Add.35), the Committee on the Elimination hopes and feelings.” of Discrimination against Women (CEDAW) (CEDAW/C/JOR/2), its own previous concluding There was further concern about the situation of observations (Jordan CRC/C/15/Add.21) working girls: and with article 2 of the Convention, the “Girls below the age of 15 often do the same Committee recommends to the State Party household work as adult women; such labour to take effective measures to prevent and is not regarded as ‘real work’ and is therefore eliminate discrimination on the grounds of sex never reflected in the statistical data. To free and birth status in all fields of civil, economic, girls from this cycle they must have the equal political, social and cultural life. The Committee chances and equal treatment, with special recommends to the State Party to incorporate emphasis on education.” equality on the basis of sex in article 6 of the Constitution. The Committee recommends to The General Discussion concluded that there was the State Party to make all efforts to enact or an urgent need to gather gender-disaggregated rescind civil and criminal legislation, where data, necessary, to prohibit any such discrimination. “... in a comprehensive and integrated manner, In this regard, the Committee encourages the at the international, regional, national and State Party to consider the practice of other local levels, with a view to assessing the States that have been successful in reconciling prevailing reality affecting girls, identifying fundamental rights with Islamic texts. The persisting problems and challenging the Committee recommends to the State Party prevalence of invisibility, which in turn to take all appropriate measures, such as allows for the perpetuation of vulnerability”. comprehensive public education campaigns, to (Committee on the Rights of the Child, Report on prevent and combat negative societal attitudes the eighth session, January 1995, CRC/C/38, in this regard, particularly within the family. pp. 47-52) Religious leaders should be mobilized to (Jordan CRC/C/15/Add.125, support such efforts.” The Platform for Action unanimously adopted paras. 9 and 30. See also Islamic Republic of Iran by representatives from 189 countries at the CRC/C/15/Add.123, para. 22; Egypt CRC/C/15/ Fou r t h World Con ference on Women (Beiji ng, Add.145, para. 6; and Saudi Arabia CRC/C/15/ September 1995) includes a detailed section on Add.148, para. 24.) “Strategic Objectives and Actions” for the girl Children with disabilities child (A.CONF.177/20/Rev.1, section L, pp. 145 In its General Comment No. 9 on “The rights of ). In 2000 and again in 2005, special ses- et seq. children with disabilities”, the Committee notes sions of the United Nations General Assembly that children with disabilities are still experi- reviewed progress five and ten years after the encing serious difficulties and facing barriers to World Conference and adopted further actions the full enjoyment of the rights enshrined in the and initiatives to implement the Declaration and Convention. The Committee emphasizes that Plan of Action (see “Beijing + 5”, section L, p. 18 the barrier is not the disability itself but rather a and pp. 25 et seq. , A/RES/S-23/3; “Beijing + 10”). combination of social, cultural, attitudinal and The Committee has suggested to some States physical obstacles which children with disabili- that “narrow interpretations of Islamic texts” by ties encounter in their daily lives. The strategy authorities were impeding implementation of the for promoting their rights is therefore to take the Convention. For example, it recommended to necessary action to remove these barriers. The United Arab Emirates that the State Party should Committee notes that the explicit mention of NON-DISCRIMINATION 29

58 to survive, are forced to live and work in disability as a prohibited ground for discrimina- the streets’. Furthermore, the Committee tion in article 2: noted that the Commission reiterated its “... is unique and can be explained by the fact invitation to the Committee to consider the that children with disabilities belong to one possibility of a general comment thereon... of the most vulnerable groups of children. In In its discussion the Committee also pointed many cases forms of multiple discrimination out that the term ‘street children’ may not – based on a combination of factors, i.e. clearly define the nature or the causes of the indigenous girls with disabilities, children violations these children suffer. It is in fact an with disabilities living in rural areas and so on expression that covers a diversity of situations – increase the vulnerability of certain groups. affecting children. Some work in the street It has been therefore felt necessary to mention but have homes, others are abandoned or for disability explicitly in the non-discrimination other reasons become homeless, others again article. Discrimination takes place – often have escaped abuse, some are pushed into – in various aspects of the life and de facto i c t l r e prostitution or drug abuse. Another concern a development of children with disabilities. about the term was that it was understood As an example, social discrimination and in some societies to be stigmatizing and stigmatization leads to their marginalization discriminatory. The Committee, therefore, and exclusion, and may even threaten their had endeavoured to use more appropriate survival and development if it goes as far as (Committee on the Rights of the terminology.” physical or mental violence against children Child, Report on the sixth (special) session, April with disabilities. Discrimination in service 1994, CRC/C/29, p. 31) provision excludes them from education and denies them access to quality health and social Protection of child from services. The lack of appropriate education discrimination or punishment and vocational training discriminates against them by denying them job opportunities in the on basis of status, activities, future. Social stigma, fears, overprotection, expressed opinions or beliefs negative attitudes, misbeliefs and prevailing of child’s parents, guardians or prejudices against children with disabilities family members: article 2(2) remain strong in many communities and lead to the marginalization and alienation of It is doubtful whether the very wide potential (Committee on the children with disabilities...” implications of this provision have been suf- Rights of the Child, General Comment No. 9, 2006, ficiently considered during the preparation CRC/C/GC/9, paras. 5 and 8. For full discussion, and consideration of reports by States Parties. see article 23, page 321.) Paragraph 1 of article 2 lists as grounds for dis- Children living and/or working crimination “the child’s or his or her parent’s on the streets [editors’ or legal guardian’s race, colour, sex...” Most, if not all, States Parties have reported, emphasis]. Paragraph 2 adds protection against or acknowledged during discussion with the “all forms of discrimination or punishment on Committee on the Rights of the Child, that they the basis of the status, activities, expressed opin- have some children living and/or working on the ions, or beliefs of the child’s parents, legal guard- streets. Their situation and the many forms of ians, or family members”. Paragraph 1 concerns discrimination suffered by them, being among discrimination only in relation to the enjoyment the most disadvantaged and vulnerable children, of rights in the Convention; paragraph 2 requires has been a major issue of concern and a focus for action against “all forms of discrimination”, recommendations by the Committee (for detailed and is not confined to the issues raised by the discussion, see article 20, page 286). Convention. In the report on its sixth (special) session, the In its examination of reports, the Committee Committee noted resolution 1994/93 of the has noted a variety of examples of the child suf- Commission on Human Rights on the plight of fering discrimination covered by paragraph 2. street children: Implementation requires States to ensure that any “In particular, it welcomed the statement by existing Constitution, relevant legislation, court the Commission that strict compliance with decisions and administrative policy and prac- the provisions of the Convention on the Rights tice comply with this principle. For example, are of the Child would constitute a significant “all appropriate measures” taken to protect chil- step towards solving the problems in this dren from discrimination or punishment when connection. It also welcomed the fact that their parents are subject to action on the grounds the Commission commended the Committee of criminal behaviour or immigration status? (In ‘for the attention it pays in its monitoring addition, article 9 emphasizes that children must activities to the situation of children who, Implementation Handbook for the Convention on the Rights of the Child 30

59 their right to equal inheritance and abolish the be separated from their parents only when separa- discriminatory classification of those children tion is necessary for the best interests of the child; as ‘illegitimate’.” (Philippines CRC/C/15/Add.259, see page 122). Are children penalized because para. 21) of their parents’ marital status? The Committee has focused frequently on discrimination against Does the State have the means to intervene on children born “out of wedlock” – non-marital behalf of children whose rights (for example to children. For example: health care) are threatened because of the extreme religious beliefs of their parents? Do policy and “... As regards children born out of wedlock, practice in institutions ensure that brothers and the Committee requests the State Party to sisters are not victimized because of the behav- review its domestic legislation in order to secure their right to equal treatment, including iour of a sibling? i c t l r e a Reporting guidelines: see Guidelines for Periodic Reports (Revised 2005) (CRC/C/58/Rev.1), Appendix 3, page 699. NON-DISCRIMINATION 31

60 i c t l r e a Implementation Checklist General measures of implementation • Have appropriate general measures of implementation been taken in relation to article 2, including: identification and coordination of the responsible departments and agencies at all ■ ■ levels of government (the principle of non-discrimination in article 2 is relevant to all government departments) ? ■ ■ identification of relevant non-governmental organizations/civil society partners? ■ a comprehensive review to ensure that all legislation, policy and practice is ■ compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation which includes where necessary the identification of goals and indicators of ■ ■ progress? ■ which does not affect any provisions which are more conducive to the rights of ■ the child? which recognizes other relevant international standards? ■ ■ ■ ■ which involves where necessary international cooperation? (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole.) budgetary analysis and allocation of necessary resources? ■ ■ development of mechanisms for monitoring and evaluation? ■ ■ ■ making the implications of article 2 widely known to adults and children? ■ ■ ■ development of appropriate training and awareness-raising? Specific issues in implementing article 2 • Is the Convention’s principle of non-discrimination with special reference to children ■ ■ included in the constitution, if any, and in legislation? Are rights recognized for all children in the jurisdiction, without discrimination, including ■ ■ non-nationals? ■ ■ refugees? ■ illegal immigrants? ■ ■ Has the State identified particularly disadvantaged and vulnerable groups of ■ children? ■ ■ Has the State developed appropriate priorities, targets and programmes of affirmative action to reduce discrimination against disadvantaged and vulnerable groups? Does legislation, policy and practice in the State ensure that there is no discrimination against children on the grounds of the child’s or his/her parent’s/guardian’s race? ■ ■ ■ colour? ■ gender? ■ ■ Implementation Handbook for the Convention on the Rights of the Child 32

61 i c t l r e a How to use the checklist, see page XIX ■ ■ language? religion? ■ ■ political or other opinion? ■ ■ national origin? ■ ■ ■ social origin? ■ ■ ■ ethnic origin? property? ■ ■ ■ ■ disability? ■ ■ birth? ■ other status? ■ (for a full list of grounds of discrimination identified by the Committee on the Rights of the Child, see box, pages 24 and 25.) Is disaggregated data collected to enable effective monitoring of potential ■ ■ discrimination on all of these grounds in the enjoyment of rights, and discrimination between children in different regions, and in rural and urban areas? ■ Has the State developed in relation to girls an implementation strategy for the ■ Platform for Action adopted at the Fourth World Conference on Women, taking into account the recommendations of the 2000 and 2005 Reviews? Has the State developed measures and programmes, relevant to the Convention, in ■ ■ order to follow up on the Durban Declaration and Programme of Action adopted at the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance? ■ ■ Does monitoring of the realization of each right guaranteed in the Convention include consideration of the principle of non-discrimination? Does legislation, policy and practice in the State ensure that the child is protected against all forms of discrimination or punishment on the basis of the child’s parents’, legal guardians’ or family members’ status, including marital status? ■ ■ activities? ■ ■ expressed opinions? ■ ■ beliefs? ■ ■ Reminder : The Convention is indivisible and its articles are interdependent. Article 2, the non-discrimination principle, has been identified as a general principle by the Committee on the Rights of the Child, and needs to be applied to all other articles. Particular regard should be paid to: The other general principles Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 6: right to life and maximum possible survival and development Article 12: respect for the child’s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child. NON-DISCRIMINATION 33

62 UNICEF/97-0484/Murray-Lee

63 c l i t e r a Best interests of the child ... Text of Article 3 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. he Committee on the Rights of the Child order to ensure that the best interests of the child has highlighted article 3(1), that the best are a primary consideration, giving proper prior- interests of the child shall be a primary ity to children and building child-friendly soci- consideration in all actions concerning T eties. The Committee on the Rights of the Child children, as one of the general principles of the has developed its interpretation of the principle in Convention on the Rights of the Child, alongside relation to various issues in its successive General Summary articles 2, 6 and 12. The principle was first seen Comments. in the 1959 Declaration of the Rights of the Child. Within the Convention, the concept is also evi- Interpretations of the best interests of children or dent in other articles, providing obligations to use of the principle cannot trump or override any consider the best interests of individual children of the other individual rights guaranteed by other in particular situations in relation to articles in the Convention. The concept acquires Separation from parents: The child shall not be particular significance in situations where other • more specific provisions of the Convention do separated from his or her parents against his not apply. Article 3(1) emphasizes that govern- or her will “except when competent authorities ments and public and private bodies must ascer- subject to judicial review determine, in accor- tain the impact on children of their actions, in dance with applicable law and procedures, BEST INTERESTS OF THE CHILD 35

64 morally, spiritually and socially in a healthy and that such separation is necessary for the best normal manner and in conditions of freedom and interests of the child”; and States must respect dignity. In the enactment of laws for this purpose, the right of the child to maintain personal rela- the best interests of the child shall be the para- tions and direct contact with both parents on mount consideration.” a regular basis “except if it is contrary to the child’s best interests” (article 9(1) and (3)); The principle is included in two articles of the 1979 Convention on the Elimination of All Forms Parental responsibilities: Both parents have • of Discrimination against Women: article 5(b) primary responsibility for the upbringing of requires States Parties to that Convention to their child and “the best interests of the child “ensure that family education includes a proper will be their basic concern” (article 18(1)); understanding of maternity as a social function Deprivation of family environment: Children • and the recognition of the common responsibility temporarily or permanently deprived of their of men and women in the upbringing and devel- i c t l r e family environment “or in whose own best a opment of their children, it being understood that interests cannot be allowed to remain in that the interest of children is the primordial consid- environment”, are entitled to special protec- eration in all cases.” Similarly, article 16(1)(d) tion and assistance (article 20); provides that in all matters relating to marriage Adoption: States should ensure that “the best and family relations “the interests of the children • interests of the child shall be the paramount shall be paramount”. consideration” (article 21); The principle does not appear in either of the Restriction of liberty: Children who are International Covenants, but the Human Rights • deprived of liberty must be separated from Committee, in two of its General Comments on adults “unless it is considered in the child’s interpretation of the International Covenant on best interest not to do so” (article 37(c)); Civil and Political Rights, has referred to the child’s interest being “paramount” in cases of Court hearings of penal matters involving a • parental separation or divorce (Human Rights juvenile: Parents or legal guardians should Committee, General Comments Nos. 17 and 19, be present “unless it is considered not to HRI/GEN/1/Rev.8, pp. 185 and 189). be in the best interest of the child” (article 40(2)(b)(iii)). “In all actions concerning The second and third paragraphs of article 3 are children, whether undertaken also of great significance. Article 3(2) outlines an by public or private social active overall obligation of States, ensuring the welfare institutions, courts of necessary protection and care for the child’s well- law, administrative authorities being in all circumstances, while respecting the or legislative bodies...” rights and duties of parents. Together with article 2(1) and article 4, article 3(2) sets out overarching The wording of the principle indicates that its implementation obligations of the State. scope is very wide, going beyond state-initiated actions to cover private bodies too, and embra- Article 3(3) requires that standards be established cing all actions concerning children as a group. by “competent bodies” for all institutions, ser- vices and facilities for children, and that the State In General Comments and in its examination ■ ensures that the standards are complied with. of States Parties’ reports, the Committee on the Rights of the Child has emphasized that article Article 3(1) 3(1) is fundamental to the overall duty to under- take all appropriate measures to implement The concept of the “best interests” of children has the Convention for all children under article 4. been the subject of more academic analysis than Consideration of the best interests of the child any other concept included in the Convention on should be built into national plans and policies for the Rights of the Child. In many cases, its inclu- children and into the workings of parliaments and sion in national legislation pre-dates ratifica- government, nationally and locally, including, in tion of the Convention, and the concept is by no particular, in relation to budgeting and allocation means new to international human rights instru- of resources at all levels. ments. The 1959 Declaration of the Rights of the Child uses it in Principle 2: “The child shall enjoy In its General Comment No. 5 on “General mea- special protection, and shall be given opportu- sures of implementation for the Convention on nities and facilities, by law and by other means, the Rights of the Child (arts. 4, 42 and 44, para. 6)”, the Committee emphasizes the importance to enable him to develop physically, mentally, Implementation Handbook for the Convention on the Rights of the Child 36

65 others who have day-to-day responsibility for of ensuring that domestic law reflects article 3(1) realizing children’s rights: together with the other identified general prin- (a) Best interests of individual children. All ciples (para. 22). The Committee states that the decision-making concerning a child’s care, best interests’ principle health, education, etc. must take account “... requires active measures throughout of the best interests’ principle, including Government, parliament and the judiciary. decisions by parents, professionals and others Every legislative, administrative and judicial responsible for children. States Parties are body or institution is required to apply the urged to make provisions for young children best interests principle by systematically to be represented independently in all legal considering how children’s rights and interests proceedings by someone who acts for the are or will be affected by their decisions child’s interests, and for children to be heard in and actions – by, for example, a proposed or all cases where they are capable of expressing existing law or policy or administrative action their opinions or preferences; or court decision, including those which are i c t l (b) Best interests of young children as a r e a not directly concerned with children, but group or constituency. All law and policy indirectly affect children.” (CRC/GC/2003/5, development, administrative and judicial para. 12) decision-making and service provision that affect children must take account of the The Committee goes on to explain the need for best interests’ principle. This includes actions child impact assessment and evaluation: directly affecting children (e.g. related to “Ensuring that the best interests of the child health services, care systems, or schools), as are a primary consideration in all actions well as actions that indirectly impact on young concerning children (art. 3(1)), and that all the children (e.g., related to the environment, provisions of the Convention are respected (Committee on the Rights housing or transport).” in legislation and policy development and of the Child, General Comment No. 7, 2005, delivery at all levels of government demands a CRC/C/GC/7/Rev.1, para. 13) continuous process of child impact assessment (predicting the impact of any proposed law, “... the best interests of policy or budgetary allocation which affects the child...” children and the enjoyment of their rights) and child impact evaluation (evaluating the actual The Working Group drafting the Convention did impact of implementation). This process needs not discuss any further definition of “best inter- to be built into government at all levels and as ests”, and the Committee on the Rights of the early as possible in the development of policy. Child has not as yet (2007) drafted a General “Self-monitoring and evaluation is an obligation for Governments. But the Comment on the principle. But in its first 10 Committee also regards as essential the General Comments, issued between 2001 and independent monitoring of progress towards 2007, it has alluded to the principle and in some implementation by, for example, parliamentary cases – see below – set out quite detailed expla- committees, NGOs, academic institutions, nations of the implications of applying it to indi- professional associations, youth groups and vidual children and/or to particular groups of independent human rights institutions... children in particular circumstances. “The Committee commends certain States which have adopted legislation requiring the The Committee has repeatedly stressed that the preparation and presentation to parliament Convention should be considered as a whole and and/or the public of formal impact analysis has emphasized its interrelationships, in particu- statements. Every State should consider how it lar between those articles it has elevated to the can ensure compliance with article 3 (1) and do status of general principles (articles 2, 3, 6 and so in a way which further promotes the visible 12). Thus, the principles of non-discrimination, integration of children in policy-making and maximum survival and development, and respect sensitivity to their rights.” (Committee on the for the views of the child must all be relevant to Rights of the Child, General Comment No. 5, 2003, determining what the best interests of a child are CRC/GC/2003/5, paras. 45-47. See also article 4, page 61.) in a particular situation, as well as to determining the best interests of children as a group. In its General Comment No. 7 on “Implementing child rights in early childhood”, the Committee For example, in comments on Albania’s Initial states: Report, the Committee “The principle of best interests applies to all “... notes the progress reported by the State actions concerning children and requires active Party in giving primary consideration to the measures to protect their rights and promote best interests of the child. However, the their survival, growth, and well-being, as well Committee regrets that the determination of as measures to support and assist parents and what constitutes the ‘best interests‘ seems to BEST INTERESTS OF THE CHILD 37

66 be the decision of adults alone involving little gives some indication of what a “best interests’ consultation with children, even when they determination” should consist of: are able to state their opinions and interests”. “At any of these stages, a best interests’ (Albania CRC/C/15/Add.249, para. 26) determination must be documented in preparation of any decision fundamentally Consideration of best interests must embrace impacting on the unaccompanied or separated both short- and long-term considerations for the child’s life. child. Any interpretation of best interests must be “A determination of what is in the best consistent with the spirit of the entire Convention interests of the child requires a clear and – and in particular with its emphasis on the child comprehensive assessment of the child’s as an individual with views and feelings of his or identity, including her or his nationality, her own and the child as the subject of civil and upbringing, ethnic, cultural and linguistic political rights as well as special protections. background, particular vulnerabilities and protection needs. Consequently, allowing the i c t l r States cannot interpret best interests in an overly e a child access to the territory is a prerequisite to culturally relativist way and cannot use their own this initial assessment process. The assessment interpretation of “best interests” to deny rights process should be carried out in a friendly and now guaranteed to children by the Convention, safe atmosphere by qualified professionals for example to protection against traditional prac- who are trained in age and gender-sensitive tices and violent punishments (see pages 371 and interviewing techniques. 256). In its 2006 General Comment No. 8 on “The “Subsequent steps, such as the appointment of a competent guardian as expeditiously as right of the child to protection from corporal pun- possible, serves as a key procedural safeguard ishment and other cruel or degrading forms of to ensure respect for the best interests of inter alia )”, punishment (articles. 19, 28.2 and 37, an unaccompanied or separated child...” the Committee explains: (Committee on the Rights of the Child, General “When the Committee on the Rights of Comment No. 6, 2005, CRC/GC/2005/6, paras. 19- the Child has raised eliminating corporal 21. The Committee covers the implications of article punishment with certain States during the 12 in these situations in a separate section of the examination of their reports, governmental General Comment (para. 25).) representatives have sometimes suggested that some level of ‘reasonable‘ or ‘moderate‘ In its General Comment on “HIV/AIDS and the corporal punishment can be justified as in the rights of the child”, the Committee notes: ‘best interests‘ of the child. The Committee “Policies and programmes for the prevention, has identified, as an important general care and treatment of HIV/AIDS have principle, the Convention’s requirement that generally been designed for adults with scarce the best interests of the child should be a attention to the principle of the best interests primary consideration in all actions concerning of the child as a primary consideration... children (article 3(1)). The Convention also The obligations attached to this right are asserts, in article 18, that the best interests of fundamental to guiding the action of States the child will be parents’ basic concern. But in relation to HIV/AIDS. The child should be interpretation of a child’s best interests must placed at the centre of the response to the be consistent with the whole Convention, pandemic, and strategies should be adapted to including the obligation to protect children children’s rights and needs.” (Committee on the from all forms of violence and the requirement Rights of the Child, General Comment No. 3, 2003, to give due weight to the child’s views; it CRC/GC/2003/3, para. 10) cannot be used to justify practices, including corporal punishment and other forms of cruel or degrading punishment, which conflict with “... shall be a primary the child’s human dignity and right to physical consideration” (Committee on the Rights of the Child, integrity.” General Comment No. 8, 2006, CRC/C/GC/8, The wording indicates that the best interests of para. 26) the child will not always be the single, overrid- ing factor to be considered; there may be com- The Committee reviews the implications of art- peting or conflicting human rights interests, for icle 3(1) for States’ treatment of unaccompanied example, between individual children, between and separated children, and the search for long- different groups of children and between children and short-term solutions for them. In its 2005 and adults. The child’s interests, however, must General Comment No. 6 on “Treatment of unac- be the subject of active consideration; it needs companied and separated children outside their to be demonstrated that children’s interests have country of origin” it emphasizes that for dis- been explored and taken into account as a pri- placed children, the principle must be respected mary consideration. during all stages of the displacement cycle and it Implementation Handbook for the Convention on the Rights of the Child 38

67 raising among the public at large, including Some debate took place in the Working Group traditional communities and religious leaders, drafting the Convention, and proposals were as well as educational programmes on the made that the article should refer to the child’s implementation of these principles should be best interests as “ the primary consideration” or (Bolivia CRC/C/15/Add.95, para. 18) reinforced.” “the paramount consideration”. These proposals were rejected. The very wide umbrella-like cov- “The Committee values the fact that the State erage of article 3(1) – “in all actions concerning Party holds the principle of the best interests children” – includes actions in which other par- of the child to be of vital importance in the development of all legislation, programmes ties may have equal claims to have their interests and policies concerning children and is aware considered. (E/CN.4/L.1575, pp. 3 to 7, Detrick, of the progress made in this respect. However, pp. 132 and 133) the Committee remains concerned that the Where the phrase “best interests” is used else- principle that primary consideration should i c where in the Convention (see above, page 37), the be given to the best interests of the child is t l r e a still not adequately defined and reflected in focus is on deciding appropriate action for indi- some legislation, court decisions and policies vidual children in particular circumstances and affecting certain children, especially those requires determination of the best interests of facing situations of divorce, custody and individual children. In such situations, the child’s deportation, as well as Aboriginal children. interests are the paramount consideration (as Furthermore, the Committee is concerned that stated explicitly in relation to adoption in article there is insufficient research and training for 21; see page 295). professionals in this respect. “The Committee recommends that the Best interests principle principle of ‘best interests of the child‘ to be reflected in legislation contained in article 3 be appropriately The Committee has consistently emphasized that analysed and objectively implemented with article 3, together with other identified general regard to individual and groups of children in principles in the Convention, should be reflected various situations (e.g,. aboriginal children) in legislation and integrated into all relevant and integrated in all reviews of legislation decision-making (and it confirms this in its concerning children, legal procedures in courts, as well as in judicial and administrative General Comment No. 5 on “General measures of decisions and in projects, programmes and implementation for the Convention on the Rights services that have an impact on children. of the Child (arts. 4, 42 and 44, para. 6)” – see The Committee encourages the State Party above, pages 36 and 37). to ensure that research and educational The Committee has indicated also that it expects programmes for professionals dealing with children are reinforced and that article 3 of the the best interests’ principle to be written into Convention is fully understood, and that this legislation in a way that enables it to be invoked (Canada principle is effectively implemented.” before the courts. In examining second and sub- CRC/C/15/Add.215, paras. 24 and 25) sequent reports, the Committee continues to express concern that in practice the general “As regards the general principle of the best principles contained in articles 3 and 12 are not interests of the child under article 3 of the respected. For example: Convention, the Committee is concerned that this principle is not given adequate attention “While the Committee notes that the in national legislation and policies and that principles of the ‘best interests of the child’ this principle is not a primary consideration (art. 3) and ‘respect for the views of the child’ in decision-making regarding children, for (art. 12) have been incorporated in domestic example custody decisions. The Committee legislation, it remains concerned that in also notes with concern that awareness of its practice, as it is recognized in the report, these significance is low among the population. principles are not respected owing to the fact “The Committee recalls its previous that children are not yet perceived as persons recommendation in this regard made upon the entitled to rights and that the rights of the consideration of the State Party’s initial report child are undermined by adults’ interests. The and recommends that the State Party take Committee recommends that further efforts measures to raise awareness of the meaning be made to ensure the implementation of and practical application of the principle of the the principles of the ‘best interests of the best interests of the child and to ensure that child’ and ‘respect for the views of the child’, article 3 of the Convention is duly reflected especially his or her rights to participate in in its legislation and administrative measures. the family, at school, within other institutions The Committee recommends that the State and in society in general. These principles Party review its legislation critically to ensure should also be reflected in all policies and that the main thrust of the Convention, programmes relating to children. Awareness- BEST INTERESTS OF THE CHILD 39

68 namely that children are subjects of their own Not subject to derogation rights, is adequately reflected in domestic The Committee has emphasized that the general legislation and that the best interests of the principles of the Convention on the Rights of the child is a primary consideration in all decision- Child are not subject to derogation in times of making regarding children, including custody emergency. For example, in the report of its Day decisions.” (Algeria CRC/C/15/Add.269, paras.29 of General Discussion on “Children in armed and 30) conflict” the Committee commented that none of “The Committee welcomes the assertion of the general provisions in articles 2, 3 and 4 the State Party that priority is given to the “... admit a derogation in time of war or implementation of children’s rights, but it is (Committee on the Rights of the emergency”. concerned that the best interests of the child Child, Report on the second session, September/ are insufficiently addressed under the pressure October 1992, CRC/C/10, para. 67) of the economic transformation and the pressures of an aging population. i c t l r e a States to ensure necessary “The Committee recommends that the State protection and care for the child, Party: (a) Ensure that the general principle of taking account of rights and the best interests of the child is a primary duties of parents and others consideration and is fully integrated into all legally responsible: article 3(2) legislation relevant to children; and (b) Ensure that this principle is applied in all States must ensure necessary protection and political, judicial and administrative decisions, care for all children in their jurisdiction. They as well as projects, programmes and services must take account of the rights and duties of par- (Latvia that have an impact on children.” ents and others legally responsible for the child. CRC/C/LVA/CO/2, paras. 22 and 23) But there are many aspects of “care and protec- When a “best interests’” principle is already tion” that individual parents cannot provide – for reflected in national legislation, it is generally example, protection against environmental pol- in relation to decision-making about individual lution or traffic accidents. And where individ- children, in which the child is the primary, or a ual families are unable or unwilling to protect primary, subject or object – for example in family the child, the State must provide a “safety net”, proceedings following separation or divorce of ensuring the child’s well-being in all circum- parents, in adoption and in state intervention to stances. Often, the obligations of State and par- protect children from ill-treatment. It is much ent are closely related – for example, the State is less common to find the principle in legislation required to make available compulsory free pri- covering other “actions” that concern groups mary education; parents have a duty to ensure of children or all children, but may not be education in line with the child’s best interests. specifically directed at children. The principle should apply, for example, to policy-making on Bulletin of A commentary published in the employment, planning, transport and so on. Even emphasizes the “fundamental Human Rights within services whose major purpose is children’s importance” of paragraph 2 of article 3: “Its sig- development, for example education or health, the nificance derives in the first place from its posi- principle is often not written into the legislative tion as an umbrella provision directed at ensuring, framework. Thus, in relation to the United through one means or another, the well-being Kingdom, the Committee noted its concern of the child. Secondly, its comprehensiveness “... about the apparent insufficiency of means that it constitutes an important reference measures taken to ensure the implementation point in interpreting the general or overall obli- of the general principles of the Convention, gations of governments in the light of the more namely the provisions of its articles 2, 3, 6, specific obligations contained in the remaining and 12. In this connection, the Committee parts of the Convention. The obligation which is observes in particular that the principle of the explicit in the undertaking ‘to ensure the child best interests of the child appears not to be such protection and care as is necessary for his or reflected in legislation in such areas as health, education and social security which have a her well-being’ is an unqualified one. While the bearing on the respect for the rights of the next phrase makes it subject to the need to take (United Kingdom CRC/C/15/Add.34, child.” account of the rights and duties of other entities, para. 11) the obligation of the State Party, albeit as a last resort, is very clearly spelled out. The verb used to It repeated its concern with emphasis, when it describe the obligation (‘to ensure’) is very strong examined the United Kingdom’s Second Report and encompasses both passive and active (includ- (United Kingdom CRC/C/15/Add.188, paras. 25 and 26). ing pro-active) obligations. The terms ‘protection Implementation Handbook for the Convention on the Rights of the Child 40

69 with disabilities (article 23), rehabilitative care and care’ must also be read expansively, since (article 39) and institutional and other care related their objective is not stated in limited or negative to the juvenile justice system (article 40). There terms (such as ‘to protect the child from harm’) should also be health and educational institutions but rather in relation to the comprehensive ideal providing care or protection. of ensuring the child’s ‘well-being’...” (Philip Alston, “The Legal framework of the Convention Article 3(3) does not provide an exhaustive list of on the Rights of the Child”, Bulletin of Human the areas in which standards must be established Rights, 91/2, p. 9) but it does mention “particularly in the areas of safety, health, in the number and suitability of The Committee on the Rights of the Child has their staff, as well as competent supervision.” In very frequently referred to circumstances in addition, services and institutions providing care which the State is failing to adequately provide and protection must comply with all other pro- for particular groups of vulnerable children. The visions of the Convention, respecting, for exam- most common category are children living and/or i c t l r e a ple, the principles of non-discrimination and best working on the streets, identified as existing in interests and the right of children to have their significant numbers in most States (see article 2, views and other civil rights respected and to be page 30 and article 20, page 286). Article 3(2) protected from all forms of violence and exploi- makes clear that, notwithstanding the rights and tation (articles 2, 3, 12, 13, 14, 15, 16, 19, 32-37). duties of parents and any others legally respon- In addition, article 25 (see page 379) sets out the sible, the State has an active obligation to ensure right of a child who has been placed for care, pro- such children’s well-being. This general obliga- tection or treatment “to a periodic review of the tion is linked to its obligations under the other treatment provided to the child and all other cir- general principles of the Convention in articles 2, cumstances relevant to his or her placement.” 6, and 12 and to any relevant specific obligations – for example to provide “appropriate assistance Implementation of article 3(3) requires a com- to parents and legal guardians” in their child-rear- prehensive review of the legislative framework ing responsibilities under article 18(2), to provide applying to all such institutions and services, “special protection and assistance” to children whether run directly by the State, or by voluntary deprived of their family environment (article and private bodies. The review needs to cover 20(1)), to recognize the rights of children to ben- all services – care, including foster care and day efit from social security and to an adequate stan- care, health, education, penal institutions and dard of living (articles 26 and 27) and to protect so on. Consistent standards should be applied to children from all forms of violence and exploita- all, with adequate independent inspection and tion (articles 19, 32, 33, 34, 35, 36, 37). monitoring. In institutions, widespread violence against children, both physical and sexual, has Similarly, in times of economic recession or cri- been uncovered in recent years in many States, sis, or of environmental disaster or armed con- emphasizing the lack of appropriate safeguards, flict this overriding active obligation comes into including independent inspection and effective play, linked to other more specific provisions. In complaints procedures (see also article 12, page order to be able to fulfil its obligations, the State et seq .). 158 and article 19, pages 265 must ensure that it knows, as far as possible, when a child’s well-being is threatened and what In its General Comment No. 7 on “Implementing additional State action is required. child rights in early childhood”, the Committee notes: Institutions, services and “States Parties must ensure that the facilities for care or protection institutions, services and facilities responsible of children must conform for early childhood conform to quality with established standards: standards, particularly in the areas of health and safety, and that staff possess the article 3(3) appropriate psychosocial qualities and are suitable, sufficiently numerous and well- Standards must be established for institutions, trained. Provision of services appropriate services and facilities for children, and the State to the circumstances, age and individuality must ensure that the standards are complied with of young children requires that all staff be through appropriate inspection. Other articles trained to work with this age group. Work refer to particular services that States Parties with young children should be socially valued should ensure are available; for example “for the and properly paid, in order to attract a highly care of children” (under article 18(2) and (3)), alter- qualified workforce, men as well as women. native care provided for children deprived of their It is essential that they have sound, up-to- family environment (article 20), care for children date theoretical and practical understanding BEST INTERESTS OF THE CHILD 41

70 about children’s rights and development...; substitute for – the role of the State. Where non-State services play a major role, the that they adopt appropriate child-centred Committee reminds States Parties that they care practices, curricula and pedagogies; and have an obligation to monitor and regulate that they have access to specialist professional the quality of provision to ensure that resources and support, including a supervisory children’s rights are protected and their best and monitoring system for public and private (Committee on the Rights of the interests served.” programmes, institutions and services.” Child, General Comment No. 7, 2005, CRC/C/GC/7/ (Committee on the Rights of the Child, General Rev.1, para. 32) Comment No. 7, 2005, CRC/C/GC/7/Rev.1, para. 23) The Committee on the Rights of the Child has fre- The provision covers not only state-provided quently commented on lack of qualified staff, lack institutions, services and facilities but also all of training and inadequate monitoring and super- those “responsible” for the care or protection of vision, in particular of institutions. For example, children. In many countries, much of the non- i c t l r e it expressed concern to Sri Lanka that there was family care of children is provided by voluntary a no monitoring mechanism for either registered or or private bodies, and in some States policies of unregistered institutions or voluntary homes, and privatization of services are taking more insti- recommended that the State should tutions out of direct state control. Article 3(3) requires standards to be established for all such “... establish a uniform set of standards for institutions, services and facilities by competent public and private institutions and voluntary (Sri Lanka homes and monitor them regularly”. bodies. Together with the non-discrimination CRC/C/15/Add.207, paras. 32 and 33) principle in article 2, the standards must be con- sistent and conform to the rest of the Convention. “... The Committee ... also recommends the The Committee re-emphasized the need for con- further training of personnel in all institutions, sistent standards across public and private sectors such as social, legal or educational workers. in the recommendations adopted following its An important part of such training should be Day of General Discussion on “The private sector to emphasize the promotion and protection of the child’s sense of dignity and the issue of as service provider and its role in implementing child neglect and maltreatment. Mechanisms child rights” (Report on the thirty-first session, to evaluate the ongoing training of personnel September/October 2002, et CRC/C/121, pp. 152 dealing with children are also required.” seq .). It referred to these recommendations and (Russian Federation CRC/C/15/Add.4, para. 19) expanded on them in relation to early childhood services in its General Comment No. 7: T he Com m it t e e fol lowe d t h is up when it exa m i ne d the Second Report of the Russian Federation: “... the Committee recommends that States Parties support the activities of the “... In the light of article 3, paragraph 3, non-governmental sector as a channel for of the Convention, the Committee further programme implementation. It further recommends the reform, including legal calls on all non-State service providers (‘for reform, of the institutional system by the profit‘ as well as ‘non-profit’ providers) to establishment of standards for conditions in respect the principles and provisions of the institutions and their regular inspection, in Convention and, in this regard, reminds particular by reinforcing the role and powers States Parties of their primary obligation to of independent inspection mechanisms and ensure its implementation. Early childhood ensuring their right to inspect foster homes professionals – in both the state and non-state and public institutions without warning...” sectors – should be provided with thorough (Russian Federation CRC/C/15/Add.110, para. 39) preparation, ongoing training and adequate And it returned to the issue on examination of the remuneration. In this context, States Parties Third Report, noting again the need for “indepen- are responsible for service provision for early dent public inspections of children’s institutions” childhood development. The role of civil (CRC/C/RUS/CO/3, paras. 44 and 45). society should be complementary to – not a Reporting guidelines: see Guidelines for Periodic Reports (Revised 2005) (CRC/C/58/Rev.1), Appendix 3, page 699. Implementation Handbook for the Convention on the Rights of the Child 42

71 i c t l r e a Implementation Checklist • General measures of implementation Have appropriate general measures of implementation been taken in relation to article 3, including: identification and coordination of the responsible departments and agencies at all ■ ■ all departments of levels of government (implementation of article 3 is relevant to )? government ■ ■ identification of relevant non-governmental organizations/civil society partners? a comprehensive review to ensure that all legislation, policy and practice is ■ ■ compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation which includes where necessary the identification of goals and indicators of ■ ■ progress? which does not affect any provisions which are more conducive to the rights of ■ ■ the child? which recognizes other relevant international standards? ■ ■ ■ ■ which involves where necessary international cooperation? (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole.) ■ budgetary analysis and allocation of necessary resources? ■ ■ development of mechanisms for monitoring and evaluation? ■ making the implications of article 3 widely known to adults and children? ■ ■ ■ ■ development of appropriate training and awareness-raising for all those working with or for children ? • Specific issues in implementing article 3 Is the principle that the best interests of the child shall be a primary consideration in all actions concerning children reflected in the Constitution (if any)? ■ ■ relevant legislation applying to ■ public social welfare institutions? ■ private social welfare institutions? ■ ■ courts of law? ■ ■ ■ administrative authorities? ■ legislative bodies? ■ ■ Is consideration of the best interests of affected children – child impact assessment – required in legislation, administrative decision-making, and policy and practice at all levels of government concerning budget allocations to the social sector and to children, and between and ■ ■ within departments of government? BEST INTERESTS OF THE CHILD 43

72 i c t l r e a How to use the checklist, see page XIX ■ social security? ■ planning and development? ■ ■ ■ the environment? ■ ■ ■ housing? ■ transport? ■ ■ health? ■ ■ ■ education? ■ ■ employment? ■ ■ administration of juvenile justice? ■ the criminal law (e.g. the effects of the sentencing of parents on children, ■ etc.)? ■ ■ nationality and immigration, including asylum seeking? ■ ■ any rules governing alternative care, including institutions for children? ■ ■ Are there legislative provisions relating to children in which the best interests of the child are to be the “paramount” rather than primary consideration? ■ Where legislation requires determination of the best interests of a child in particular ■ circumstances, have criteria been adopted for the purpose which are compatible with the principles of the Convention, including giving due weight to the expressed views of the child? Article 3(2) ■ ■ Does legislation require the State to provide such care and protection as is necessary for the well-being of any child in cases where it is not otherwise being provided? ■ Does legislation provide for such care and protection at times of national disaster? ■ ■ ■ Is there adequate monitoring to determine whether this provision is fully implemented for all children? Article 3(3) Has the State reviewed all institutions, services and facilities, both public and private, responsible for the care or protection of children to ensure that formal standards are established covering ■ safety? ■ ■ ■ health? ■ ■ protection of children from all forms of violence? ■ ■ the number and suitability of staff? ■ ■ conformity with all provisions of the Convention? ■ ■ independent inspection and supervision? Implementation Handbook for the Convention on the Rights of the Child 44

73 i c t l r e a How to use the checklist, see page XIX The Convention is indivisible and its articles interdependent. Article 3(1) Reminder : has been identified by the Committee on the Rights of the Child as a general principle of relevance to implementation of the whole Convention. Article 3(2) provides States with a general obligation to ensure necessary protection and care for the child’s well- being. Particular regard should be paid to: The general principles Article 2: all rights to be recognized for each child in the jurisdiction without discrimination on any ground Article 6: right to life and maximum possible survival and development Article 12: respect for the child’s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child Other articles requiring specific consideration of the child’s best interests Article 9: separation from parents Article 18: parental responsibilities for their children Article 20: deprivation of family environment Article 21: adoption Article 37(c): separation from adults in detention Article 40(2)(b)(iii): presence of parents at court hearings of penal matters involving a juvenile Article 3(3) Article 3(3) is relevant to the provision of all institutions, services and facilities for children, for example all forms of alternative care (articles 18, 20, 21, 22, 23 and 39), health care (article 24), education (article 28), and juvenile justice (articles 37 and 40) BEST INTERESTS OF THE CHILD 45

74 UNICEF/5131/Isaac

75 c l i t e r Implementation a of rights in the Convention ... Text of Article 4 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 cooperation. rticle 4 sets out States’ overall obliga- tation, the Committee on the Rights of the Child tions to implement all the rights in the has proposed a wide range of strategies to ensure Convention on the Rights of the Child. Governments give appropriate priority and atten- They must take “all appropriate legis- A tion to children in order to implement the whole lative, administrative, and other measures”. Only Convention effectively. From the beginning, in its in relation to economic, social and cultural rights, the Committee has Guidelines for Initial Reports, is there the qualification that such measures shall emphasized the particular importance of ensur- be undertaken to the maximum extent of their ing that all domestic legislation is compatible available resources and, where needed, within the with the Convention and that there is appropriate framework of international cooperation. Neither coordination of policy affecting children within Summary the Convention itself nor the Committee defines and between all levels of government. which of the articles include civil and political In 2003, the Committee adopted a detailed rights and which economic, social or cultural General Comment on “General measures of rights. It is clear that almost all articles include implementation of the Convention on the Rights elements which amount to civil or political rights of the Child (arts. 4, 42 and 44, para. 6)” (CRC/ (see page 52). GC/2003/5; for full text see www.ohchr.org/ Other general implementation obligations on english / bodies/crc/comments.htm). In a foreword, States Parties are provided by article 2 (to respect the Committee indicates that the various elements and ensure the rights in the Convention to all of the concept are complex and that it is likely to children without discrimination, see page 21), issue more detailed general comments on individ- and article 3(2) (to “undertake to ensure the child ual elements in due course. It also notes the rel- such protection and care as is necessary for his or evance of its General Comment No. 2 on “The role her well-being...” see page 40). of independent national human rights institutions While emphasizing that there is no favoured in the protection and promotion of the rights of the legislative or administrative model for implemen- child” (CRC/GC/2002/2; see below, page 66). ■ IMPLEMENTATION OF RIGHTS IN THE CONVENTION 47

76 The Committee’s reporting guidelines arrange General measures of the Convention’s articles in clusters, the first implementation being on “general measures of implementation”. This groups article 4 with article 42 (the obliga- As a Committee member commented in 1995 tion to make the content of the Convention widely during examination of Canada’s Initial Report: known to children and adults; see page 627) and “... given the wide range of different administra- article 44, paragraph 6 (the obligation to make tive and legislative systems among the [then] 174 States Parties, the Committee was in no position reports widely available within the State; see to specify particular solutions. Indeed, a degree page 652). of diversity in the mechanisms set up to imple- The outcome document from the United Nations ment the Convention might lead to a degree of General Assembly’s special session on children, competition, which could be very beneficial. The , committed governments A World Fit for Children important point was that the Convention should i c t l to develop measures for implementation (Report r e a be the main benchmark and inspiration of action of the Ad Hoc Committee of the Whole of the at the provincial and central levels...” (Canada twenty-seventh special session of the General CRC/C/SR.214, para. 54) see box). Assembly, 2002, A/S-27/19/Rev.1, In its 2003 General Comment No. 5 on “General The Committee notes, from its examination of measures of implementation of the Convention on reports over the first decade, positive indications the Rights of the Child (arts. 4, 42 and 44, para. that children are becoming more visible in gov- 6)”, the Committee provides detailed guidance to ernment: States. It first explains and defines the concept: “The general measures of implementation “When a State ratifies the Convention on the identified by the Committee and described in Rights of the Child, it takes on obligations the present general comment are intended under international law to implement it. to promote the full enjoyment of all rights Implementation is the process whereby States in the Convention by all children, through Parties take action to ensure the realization legislation, the establishment of coordinating of all rights in the Convention for all children and monitoring bodies – governmental in their jurisdiction. Article 4 requires States and independent – comprehensive data Parties to take ‘all appropriate legislative, collection, awareness-raising and training administrative and other measures’ for and the development and implementation of implementation of the rights contained appropriate policies, services and programmes. therein. While it is the State which takes One of the satisfying results of the adoption on obligations under the Convention, its and almost universal ratification of the task of implementation – of making reality Convention has been the development at of the human rights of children – needs to the national level of a wide variety of new engage all sectors of society and, of course, child-focused and child-sensitive bodies, children themselves. Ensuring that all structures and activities – children’s rights domestic legislation is fully compatible with units at the heart of Government, ministers the Convention and that the Convention’s for children, interministerial committees on principles and provisions can be directly applied children, parliamentary committees, child and appropriately enforced is fundamental. In impact analysis, children’s budgets and ‘state addition, the Committee on the Rights of the of children’s rights’ reports, NGO coalitions on Child has identified a wide range of measures children’s rights, children’s ombudspersons and that are needed for effective implementation, children’s rights commissioners and so on. including the development of special structures “While some of these developments may and monitoring, training and other activities seem largely cosmetic, their emergence at in Government, parliament and the judiciary at the least indicates a change in the perception all levels. of the child’s place in society, a willingness “In its periodic examination of States Parties’ to give higher political priority to children reports under the Convention, the Committee and an increasing sensitivity to the impact of pays particular attention to what it has termed governance on children and their human rights. ‘general measures of implementation‘. In its “The Committee emphasizes that, in the Concluding Observations issued following context of the Convention, States must see examination, the Committee provides their role as fulfilling clear legal obligations specific recommendations relating to general to each and every child. Implementation of measures. It expects the State Party to the human rights of children must not be seen describe action taken in response to these as a charitable process, bestowing favours on recommendations in its subsequent periodic (Committee on the Rights of the Child, children...” (Committee on the Rights of the Child, report...” General Comment No. 5, 2003, CRC/GC/2003/5, General Comment No. 5, 2003, CRC/GC/2003/5, paras. 9 to 11) paras. 1 and 2). Implementation Handbook for the Convention on the Rights of the Child 48

77 Building a world fit for children “We, the Governments participating in the special session, commit ourselves to implementing the Plan of Action through consideration of such measures as: (a) Putting in place, as appropriate, effective national legislation, policies and action plans and allocating resources to fulfil and protect the rights and to secure the well-being of children; (b) Establishing or strengthening national bodies, such as, inter alia, independent ombudspersons for children, where appropriate, or other institutions for the promotion and protection of the rights of the child; (c) Developing national monitoring and evaluation systems to assess the impact of our actions on children; i c t l r e a (d) Enhancing widespread awareness and understanding of the rights of the child.” (Extract from “A World Fit for Children”, outcome document of the 2002 United Nations General Assembly’s special session on children, Report of the Ad Hoc Committee of the Whole of the twenty- seventh special session of the General Assembly, 2002, A/S-27/19/Rev.1, para. 31) Each of the International Covenants has articles activities by the States Parties to enable individu- similar to article 4 of the Convention on the Rights als to enjoy their rights...” The General Comment of the Child, setting out overall implementation goes on to emphasize the importance of ensur- obligations; and the responsible Treaty Bodies ing that individuals know what their rights are have developed relevant General Comments. – an obligation included in the Convention on the Rights of the Child in article 42 (see page 627) Article 2 of the International Covenant on Civil (Human Rights Committee, General Comment and Political Rights, on implementation, includes No. 3, 1981, HRI/GEN/1/Rev.8, para. 1, p. 164). as its first paragraph the non-discrimination prin- ciple, equivalent to article 2(1) of the Convention. Review and withdrawal Paragraph 2 states: “Where not already provided of reservations for by existing legislative or other measures, each State Party to the present Covenant undertakes to The first item raised by the Committee’s report- take the necessary steps, in accordance with its ing Guidelines under general measures of imple- constitutional processes and with the provisions of mentation is the review and withdrawal of any the present Covenant, to adopt such legislative or reservations which the State Party may have other measures as may be necessary to give effect made. to the rights recognized in the present Covenant.” Paragraph 3 requires States Parties to the General Comment No. 5 states: Covenant to ensure an “effective remedy” for any “States Parties to the Convention are entitled person whose rights or freedoms as recognized to make reservations at the time of their by the Covenant are violated. In an early General ratification of or accession to it (art. 51). Comment, the Human Rights Committee notes The Committee’s aim of ensuring full and that article 2 of the Covenant on Civil and Political unqualified respect for the human rights Rights “generally leaves it to the States Parties of children can be achieved only if States withdraw their reservations. It consistently concerned to choose their method of implemen- recommends during its examination of reports tation in their territories, within the framework that reservations be reviewed and withdrawn. set out in that article. It recognizes, in particular, Where a State, after review, decides to that the implementation does not depend solely maintain a reservation, the Committee on constitutional or legislative enactments, which requests that a full explanation be included per se sufficient. The in themselves are often not in the next Periodic Report. The Committee [Human Rights] Committee considers it neces- draws the attention of States Parties to sary to draw the attention of States Parties to the the encouragement given by the World fact that the obligation under the Covenant is not Conference on Human Rights to the review confined to the respect of human rights, but that and withdrawal of reservations. States Parties have also undertaken to ensure the “Article 2 of the Vienna Convention on the enjoyment of these rights to all individuals under Law of Treaties defines ‘reservation’ as a ‘unilateral statement, however phrased their jurisdiction. This aspect calls for specific IMPLEMENTATION OF RIGHTS IN THE CONVENTION 49

78 or named, made by a State, when signing, Similarly, the Committee told Jordan: ratifying, accepting, approving or acceding to “The Committee is concerned that the broad a Treaty, whereby it purports to exclude or to and imprecise nature of the reservation modify the legal effect of certain provisions of to article 14 potentially gives rise to the Treaty in their application to that State’. infringements of the freedoms of thought, The Vienna Convention notes that States are conscience and religion, and raises questions of entitled, at the time of ratification or accession its compatibility with the object and purpose to a treaty, to make a reservation unless it is of the Convention. ‘incompatible with the object and purpose of “In light of its previous recommendation the treaty’ (art. 19). (Jordan CRC/C/15/Add.21), the Committee “Article 51, paragraph 2, of the Convention recommends to the State Party to study on the Rights of the Child reflects this: ‘A its reservation to article 14 with a view to reservation incompatible with the object narrowing it, taking account of the Human and purpose of the present Convention shall Rights Committee’s General Comment No. 22 i c t l not be permitted.’ The Committee is deeply r e a and recommendations (CCPR/C/79/Add.35), concerned that some States have made and eventually, to withdraw it in accordance reservations which plainly breach article 51(2) with the Vienna Declaration and Programme of by suggesting, for example, that respect for Action.” (Jordan CRC/C/15/Add.125, paras. 12 and 13) the Convention is limited by the State’s existing Constitution or legislation, including in some Ratification of other cases religious law. Article 27 of the Vienna international instruments Convention on the Law of Treaties provides: ‘A party may not invoke the provisions of its During its examination of reports, the Committee internal law as justification for its failure to consistently encourages States Parties to con- perform a treaty.’ “The Committee notes that, in some cases, sider signing and ratifying or acceding to the States Parties have lodged formal objections to two Optional Protocols to the Convention on the such wide-ranging reservations made by other Rights of the Child, on the involvement of children States Parties. It commends any action which in armed conflict (see page 659) and on the sale contributes to ensuring the fullest possible of children, child prostitution and child pornogra- respect for the Convention in all States phy (see page 669) and other international human Parties.” (Committee on the Rights of the Child, rights instruments, “in the light of the principles General Comment No. 5, 2003, CRC/GC/2003/5, of indivisibility and interdependence of human paras. 13 to 16) rights” . In its General Comment No. 5 it includes In examining States Parties’ reports, the a non-exhaustive list of instruments in an annex Committee consistently asks States to review and which it indicates it will update from time to withdraw reservations, in particular where a res- time (see Committee on the Rights of the Child, ervation appears incompatible with the object and General Comment No. 5, CRC/GC/2003/5, para. purpose of the Convention (see also article 51, 17 and annex; see box, opposite). page 657). For example, Iran lodged a reservation which states: “The Government of the Islamic “With regard to economic, Republic of Iran reserves the right not to apply social and cultural rights, any provisions or articles of the Convention that States Parties shall undertake are incompatible with Islamic Laws and the inter- such measures to the maximum nal legislation in effect.” (CRC/C/2/Rev.8, p. 25) extent of their available The Committee commented: resources...” “... the Committee is nevertheless concerned that the broad and imprecise nature of the During the drafting of the Convention, an early State Party’s general reservation potentially version of what was to become article 4 qualified negates many of the Convention’s provisions States Parties’ obligations by including the phrase and raises concerns as to its compatibility with the object and purpose of the Convention.” “in accordance with their available resources”. A (Islamic Republic of Iran CRC/C/15/Add.123, number of delegates proposed its deletion, on the para. 7) grounds that the civil and political rights guaran- teed in the International Covenant on Civil and It returned to this when it examined Iran’s Second Political Rights were not subject to the availabil- Report, stating that it ity of resources, and that the Covenant’s standards “... deeply regrets that no review has been should not be limited in the new Convention. undertaken of the broad and imprecise But some delegates argued for the retention of nature of the State Party’s reservation since the qualification (E/CN.4/1989/48, pp. 30 and 31; (Islamic the submission of the Initial Report”. Republic of Iran CRC/C/15/Add.254, para. 6) Detrick, p. 155). Implementation Handbook for the Convention on the Rights of the Child 50

79 Ratification of other key international human rights instruments In its General Comment on “General measures of implementation of the Convention on the Rights of the Child”, the Committee provides in an annex a non-exhaustive list of other international instru- ments which it urges States Parties to ratify, “in the light of the principles of indivisibility and inter- dependence of human rights. These are in addition to the two Optional Protocols to the Convention on the Rights of the Child (on the involvement of children in armed conf lict and on the sale of chil- dren, child prostitution and child pornography) and the six other major international human rights . instruments. The Committee indicates that it will update this list from time to time – Optional Protocol to the International Covenant on Civil and Political Rights; i c t l r e – Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming a at the abolition of the death penalty; – Optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women; – Optional protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; – Convention against Discrimination in Education; – ILO Forced Labour Convention No. 29, 1930; – LO Convention No. 105 on Abolition of Forced Labour, 1957; – ILO Convention No. 138 Concerning Minimum Age for Admission to Employment, 1973; – ILO Convention No. 182 on Worst Forms of Child Labour, 1999; – ILO Convention No. 183 on Maternity Protection, 2000; – Convention relating to the Status of Refugees of 1951, as amended by the Protocol relating to the Status of Refugees of 1967; – Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949); – Slavery Convention (1926); – Protocol amending the Slavery Convention (1953); – The Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (1956); – Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime of 2000; – Geneva Convention relative to the Protection of Civilians in Time of War; – Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I); – Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II); – Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-per- sonnel Mines and of Their Destruction; – Statute of the International Criminal Court; – Hague Convention on the Protection of Children and Cooperation in respect of Intercountry Adoption; – Hague Convention on the Civil Aspects of International Child Abduction; – Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children of 1996. (Committee on the Rights of the Child, General Comment No. 5, 2003, CRC/GC/2003/5, annex) IMPLEMENTATION OF RIGHTS IN THE CONVENTION 51

80 in paragraph 1 of article 2 of the International The compromise proposal that was accepted dif- ferentiates civil and political rights from eco- Covenant on Economic, Social and Cultural nomic, social and cultural rights. States Parties are Rights: “Each State Party to the present Covenant to undertake “all appropriate legislative, adminis- undertakes to take steps, individually and through trative and other measures” for the implementa- international assistance and cooperation, espe- tion of all rights recognized in the Convention. cially economic and technical, to the maximum But in relation to economic, social and cultural of its available resources, with a view to achiev- rights, these measures are to be undertaken “to ing progressively the full realization of the rights the maximum extent of their available resources recognized in the present Covenant by all appro- and, where needed, within the framework of inter- priate means, including particularly the adoption national cooperation”. of legislative measures.” Paragraph 2 provides the principle of non-discrimination. Paragraph The Committee explains in General Comment 3 states: “Developing countries, with due regard No. 5: i c t l r e a to human rights and their national economy, may “There is no simple or authoritative division determine to what extent they would guarantee of human rights in general or of Convention the economic rights recognized in the present rights into the two categories. The Committee’s Covenant to non-nationals.” reporting guidelines [original Guidelines for Periodic reports, CRC/C/58] group articles 7, 8, The Committee on Economic, Social and Cultural 13-17 and 37(a) under the heading ‘Civil rights Rights made a detailed General Comment on and freedoms’, but indicate by the context that the nature of States Parties’ obligations in 1990. these are not the only civil and political rights Those relating to the adoption of legal measures in the Convention. Indeed, it is clear that many are quoted below (see box, page 56). As regards other articles, including articles 2, 3, 6 and 12 progressive realization through the maximum of the Convention, contain elements which constitute civil/political rights, thus reflecting use of available resources, the Committee states: the interdependence and indivisibility of all “The concept of progressive realization consti- human rights. Enjoyment of economic, social tutes a recognition of the fact that full realiza- and cultural rights is inextricably intertwined tion of all economic, social and cultural rights with enjoyment of civil and political rights. As will generally not be able to be achieved in a noted ... below, the Committee believes that short period of time. In this sense the obligation economic, social and cultural rights, as well as differs significantly from that contained in art- civil and political rights, should be regarded as icle 2 of the International Covenant on Civil and justiciable. Political Rights which embodies an immediate “The second sentence of article 4 reflects a realistic acceptance that lack of resources – obligation to respect and ensure all of the relevant financial and other resources – can hamper the rights. Nevertheless, the fact that realization over full implementation of economic, social and time, or in other words progressively, is foreseen cultural rights in some States; this introduces under the Covenant should not be misinterpreted the concept of ‘progressive realization’ as depriving the obligation of all meaningful con- of such rights: States need to be able to tent. It is on the one hand a necessary flexibility demonstrate that they have implemented device, reflecting the realities of the real world ‘to the maximum extent of their available and the difficulties involved for any country in resources’ and, where necessary, have sought ensuring full realization of economic, social and international cooperation. When States ratify the Convention, they take upon themselves cultural rights. On the other hand, the phrase obligations not only to implement it within must be read in the light of the overall objective, their jurisdiction, but also to contribute, indeed the of the Covenant which raison d’être through international cooperation, to global is to establish clear obligations for States Parties implementation. in respect of the full realization of the rights in “... Whatever their economic circumstances, question. It thus imposes an obligation to move as States are required to undertake all possible expeditiously and effectively as possible towards measures towards the realization of the rights that goal. Moreover, any deliberately retrogressive of the child, paying special attention to the measures in that regard would require the most (Committee on most disadvantaged groups.” careful consideration and would need to be fully the Rights of the Child, General Comment No. 5, CRC/GC/2003/5, paras. 6 to 8) justified by reference to the totality of the rights provided for in the Covenant and in the context of Progressive implementation: General the full use of the maximum available resources... Comment of the Committee on Economic, Social and Cultural Rights “... the Committee is of the view that a minimum The concept of progressive realization of eco- core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each nomic, social and cultural rights is reflected Implementation Handbook for the Convention on the Rights of the Child 52

81 of the rights is incumbent upon every State Party. the need for a comprehensive Thus, for example, a State Party in which any review significant number of individuals is deprived of The Committee on the Rights of the Child has essential foodstuffs, of essential primary health emphasized that an essential aspect of imple- care, of basic shelter and housing, or of the most mentation is ensuring that all legislation is “fully , failing basic forms of education is, prima facie compatible” with the provisions and principles of to discharge its obligations under the Covenant. If the Convention, requiring a comprehensive and the Covenant were to be read in such a way as not ongoing review of all legislation (where neces- to establish such a minimum core obligation, it sary, it has proposed that countries should seek . By raison d’être would be largely deprived of its technical assistance within the framework of the same token, it must be noted that any assess- international cooperation). It reiterates this in ment as to whether a State has discharged its min- General Comment No. 5: imum core obligation must also take account of “The Committee believes a comprehensive i c t l r e a resource constraints applying within the country review of all domestic legislation and concerned. Article 2(1) obligates each State Party related administrative guidance to ensure full compliance with the Convention is an to take the necessary steps ‘to the maximum of obligation. Its experience in examining not its available resources’. In order for a State Party only initial but now second and third periodic to be able to attribute its failure to meet at least its reports under the Convention suggests that minimum core obligations to a lack of available the review process at the national level has, in resources, it must demonstrate that every effort most cases, been started, but needs to be more has been made to use all resources that are at its rigorous. The review needs to consider the disposition in an effort to satisfy, as a matter of Convention not only article by article, but also priority, those minimum obligations. holistically, recognizing the interdependence and indivisibility of human rights. The review “The Committee wishes to emphasize, how- needs to be continuous rather than one- ever, that even where the available resources are off, reviewing proposed as well as existing demonstrably inadequate, the obligation remains legislation. And while it is important that for a State Party to strive to ensure the widest this review process should be built into possible enjoyment of the relevant rights under the machinery of all relevant government departments, it is also advantageous to the prevailing circumstances. Moreover, the obli- have independent review by, for example, gations to monitor the extent of the realization, parliamentary committees and hearings, or more especially of the non-realization, of eco- national human rights institutions, NGOs, nomic, social and cultural rights, and to devise academics, affected children and young people strategies and programmes for their promo- and others.” (Committee on the Rights of the tion, are not in any way eliminated as a result of Child, General Comment No. 5, CRC/GC/2003/5, resource constraints...” (Committee on Economic, para. 18) Social and Cultural Rights, General Comment The Committee has emphasized that any sys- No. 3, 1990, HRI/GEN/1/Rev.8, para. 11, pp. 17 tems of “customary” or regional or local law must and 18. See also box below, page 56.) also be reviewed and made compatible with the The approach of the Committee on Economic, Convention: Social and Cultural Rights to the concept of “the “... the coexistence of customary law and maximum use of available resources” is applica- statutory law does affect the implementation ble to interpretation of article 4 of the Convention of the Convention in the State Party where on the Rights of the Child, and the Committee traditional practices are not conducive to respect for children’s rights.” (Burkina Faso on the Rights of the Child concurs with it in its CRC/C/15/Add.193, para. 4) own General Comment No. 5 (CRC/GC/2003/5, para. 8). Giving legal effect to all the rights in the Convention The “available resources” which can be harnessed The Convention proposes that States should within a State for the implementation of rights undertake “legislative, administrative, and other extend well beyond financial resources; there are measures” to implement all the rights it contains also human and organizational resources. – including economic, social and cultural rights. Thus, as regards legal implementation, there “all appropriate legislative... is no question of the Convention being divided measures” into two categories of rights – social/economic/ Ensuring all legislation is fully cultural and civil/political – with only the latter compatible with the Convention: being implemented as legally enforceable rights. IMPLEMENTATION OF RIGHTS IN THE CONVENTION 53

82 these rights for children. The test must be As noted above, the Convention does not iden- whether the applicable rights are truly realized tify which of its rights are “economic, social, and for children and can be directly invoked cultural”. And in fact, it is clear that almost all before the courts. The Committee welcomes articles include at least elements that constitute the inclusion of sections on the rights of the civil/political rights. child in national constitutions, reflecting key principles in the Convention, which helps to Although lack of available resources may restrict underline the key message of the Convention full implementation of some Convention rights, – that children alongside adults are holders and no law on its own can make poverty or unac- of human rights. But this inclusion does not ceptable inequalities disappear, this does not automatically ensure respect for the rights mean that economic, social and cultural rights of children. In order to promote the full cannot be defined in legislation or are non- implementation of these rights, including, justiciable. The Convention requires States, for where appropriate, the exercise of rights by i c t l example, to define a period of compulsory, free children themselves, additional legislative and r e a other measures may be necessary. education, ages for admission to employment, “The Committee emphasizes, in particular, and so on. Rights can be drafted as goals towards the importance of ensuring that domestic which the State undertakes to work; or the legis- law reflects the identified general principles lation can expressly include the principle of “the in the Convention (arts. 2, 3, 6 and 12). The maximum extent of available resources”. Committee welcomes the development of consolidated children’s rights statutes, which The Committee’s General Comment No. 5 dis- can highlight and emphasize the Convention’s cusses the varied approaches to giving effect to principles. But the Committee emphasizes international instruments in domestic legislation: that it is crucial in addition that all relevant “States Parties need to ensure, by all ‘sectoral’ laws (on education, health, justice appropriate means, that the provisions of and so on) reflect consistently the principles the Convention are given legal effect within (Committee and standards of the Convention.” their domestic legal systems. This remains a on the Rights of the Child, General Comment No. 5, challenge in many States Parties. Of particular CRC/GC/2003/5, paras.19, 20 and 22) importance is the need to clarify the extent of The Committee continues to encourage incorpo- applicability of the Convention in States where the principle of ‘self-execution’ applies and ration of the Convention; so when it examined others where it is claimed that the Convention Germany’s Second Report, it noted: ‘has constitutional status’ or has been “The Committee is aware of the numerous incorporated into domestic law. laws relevant to children’s rights which have “The Committee welcomes the incorporation been adopted since the consideration of the of the Convention into domestic law, initial report but remains concerned that the which is the traditional approach to the Convention has not been incorporated into the implementation of international human Basic Law, as foreseen at the time of the initial rights instruments in some but not all States. report. Incorporation should mean that the provisions “In light of its previous recommendations of the Convention can be directly invoked (para. 21), the Committee recommends that before the courts and applied by national the State Party... reconsider the incorporation authorities and that the Convention will of the Convention into the Basic Law...” prevail where there is a conflict with domestic (Germany CRC/C/15/Add.226, paras. 9 and 10) legislation or common practice. Incorporation And it pursues the development of comprehensive by itself does not avoid the need to ensure children’s rights statutes or children’s codes: that all relevant domestic law, including any local or customary law, is brought into “The Committee notes the adoption of the compliance with the Convention. In case of any Child Protection Act No. 5 of 1997, in addition conflict in legislation, predominance should to the numerous other laws and decisions that always be given to the Convention, in the have been adopted with a view to improving light of article 27 of the Vienna Convention on the welfare of children. It is concerned, the Law of Treaties. Where a State delegates however, that many measures reflect a powers to legislate to federated, regional or predominantly welfare- rather than rights- territorial governments, it must also require based approach. The Committee reiterates these subsidiary governments to legislate its concern that several rights contained in within the framework of the Convention and the Convention (e.g., non-discrimination, the to ensure effective implementation... best interests of the child, rights concerning “Some States have suggested to the juvenile justice) are not adequately reflected in Committee that the inclusion in their the laws, including personal status laws. Constitution of guarantees of rights for “The Committee encourages the State Party: (a) To ensure that its laws, administrative ‘everyone’ is adequate to ensure respect for Implementation Handbook for the Convention on the Rights of the Child 54

83 regulations and legal procedure rules conform must provide children with remedies when their to the provisions and principles of the rights are breached: Convention and to other international human “For rights to have meaning, effective right standards; in this respect, it encourages remedies must be available to redress the State Party to take the necessary steps to violations. This requirement is implicit in the adopt a single ‘integrated‘ law on children’s Convention and consistently referred to in the rights in order to provide a comprehensive other six major international human rights legal foundation at the domestic level for treaties. Children’s special and dependent implementation of Convention rights; status creates real difficulties for them in (b) To take all possible measures to reconcile pursuing remedies for breaches of their rights. the interpretation of religious laws with So States need to give particular attention fundamental human rights; and to ensuring that there are effective, child- (c) To ensure that laws are based on a sensitive procedures available to children and child-rights approach, are sufficiently clear their representatives. These should include i c t l r and precise, are published, and are accessible e the provision of child-friendly information, a (Libyan Arab Jamahiriya CRC/C/15/ to the public.” advice, and advocacy, including support for Add.209, paras. 7 and 8) self-advocacy, and access to independent complaints procedures and to the courts with “The Committee welcomes the incorporation necessary legal and other assistance. Where of numerous articles on child rights in rights are found to have been breached, there the Constitution, which also affirms that should be appropriate reparation, including international instruments ratified by Colombia compensation, and, where needed, measures prevail over domestic legislation. The to promote physical and psychological Committee however regrets that the reform recovery, rehabilitation and reintegration, as of the inadequate Minors’ Code from 1989 has required by article 39.” (Committee on the Rights not yet been completed despite ten years of of the Child, General Comment No. 5, 2003, debate and numerous calls by United Nations CRC/GC/2003/5, para. 24) entities for amendments to take place in order The Committee underlines again that economic, to bring national legislation in line with the obligations undertaken by the ratification of social and cultural rights must be justiciable and the Convention of the Rights of the Child... to enable remedies for non-compliance with such “The Committee reiterates its concern in rights to be effective, the law must set out entitle- this regard and recommends that the State ments in sufficient detail (paras. 24 and 25). Party promptly complete the process of the reform of the Minors’ Code in order to provide “all appropriate... effective protection of the rights of all children administrative, and other in Colombia, taking into account the following measures...” four areas of concern in order to bring them into conformity with the Convention; juvenile While noting again that the Committee can- justice, adoption, work and protection against (Colombia CRC/C/COL/CO/3, abuse of children.” not prescribe in detail the measures which each paras. 9 and 10) and every State should take to ensure effective implementation of the Convention, it suggests Once appropriate legislation is in force, the that it has distilled useful advice in its General Committee frequently alludes to problems with Comment No. 5 from the first decade’s experi- the implementation of it, commenting on Latvia’s ence of examining reports and dialogue with gov- Second Report: ernments, United Nations agencies, NGOs and “The Committee is concerned, however, that others. Coordination is vital: there is a gap between law and practice, “The Committee believes that effective particularly in the areas of education, health implementation of the Convention requires care, juvenile justice and protection from visible cross-sectoral coordination to violence. recognize and realize children’s rights across “The Committee recommends that the State Government, between different levels of Party revise or amend laws where necessary, government and between Government and , inter alia and take the necessary measures, civil society – including in particular children by providing adequate human and financial and young people themselves. Invariably, many resources, to ensure the implementation of the different government departments and other laws in order to bring them in full compliance governmental or quasi-governmental bodies (Latvia, CRC/C/LVA/CO/2, with the Convention.” affect children’s lives and children’s enjoyment paras. 9 and 10) of their rights. Few, if any, government Remedies for breaches of rights departments have no effect on children’s The Committee’s General Comment No. 5 lives, direct or indirect. Rigorous monitoring of implementation is required, which should emphasizes that legislation, policy and practice IMPLEMENTATION OF RIGHTS IN THE CONVENTION 55

84 Legislating economic, social and cultural rights General Comments of the Committee on Economic, Social and Cultural Rights The importance of legislative measures to implement economic, social and cultural rights is stressed in General Comments of the Committee on Economic, Social and Cultural Rights. Paragraph 1 of article 2 of the International Covenant on Economic, Social and Cultural Rights requires that: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of i c t l legislative measures.” r e a General Comment No. 3 The Committee on Economic, Social and Cultural Rights comments: “Article 2 is of particular importance to a full understanding of the Covenant and must be seen as having a dynamic rela- tionship with all of the other provisions of the Covenant. It describes the nature of the general legal obligations undertaken by States Parties to the Covenant. Those obligations include both what may be termed (following the work of the International Law Commission) obligations of con- duct and obligations of result. While great emphasis has sometimes been placed on the difference between the formulations used in this provision and that contained in the equivalent article 2 of the International Covenant on Civil and Political Rights, it is not always recognized that there are also significant similarities [article 2 of the International Covenant on Civil and Political Rights requires States to “adopt such legislative or other measures as may be necessary to give effect to the rights in the present Covenant” and to ensure an “effective remedy” is available when such rights are vio- lated.] In particular, while the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes various obligations that are of immediate effect. Of these, two are of particular importance in understanding the precise nature of States Parties’ obligations. One of these, which is dealt with in a separate General Comment ... is the ‘undertaking to guarantee’ that relevant rights ‘will be exercised without discrimination...’ “The other is the undertaking in article 2(1) ‘to take steps’, which, in itself, is not qualified or lim- ited by other considerations. The full meaning of the phrase can also be gauged by noting some of the different language versions. In English the undertaking is ‘to take steps’, in French it is ‘to act’ ( s’e n g a g e à a g i r ) and in Spanish it is ‘to adopt measures’ ( a adoptar medidas ). Thus, while the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short term after the Covenant’s entry into force for the States concerned. Such steps should be deliberate, concrete, and targeted as clearly as possible towards meeting the obligations recognized in the Covenant. “The means which should be used in order to satisfy the obligation to take steps are stated in article 2(1) to be ‘all appropriate means, including in particular the adoption of legislative measures’. The Committee recognizes that in many instances legislation is highly desirable and in some cases may even be indispensable. For example, it may be difficult to combat discrimination effectively in the absence of a sound legislative foundation for the necessary measures. In fields such as health, the protection of children and mothers, and education, as well as in respect of the matters dealt with in articles 6 to 9 [employment and social security rights] legislation may also be an indispensable ele- ment for many purposes... “Among the measures which might be considered appropriate, in addition to legislation, is the pro- vision of judicial remedies with respect to rights which may, in accordance with the national legal system, be considered justiciable... “Where specific policies aimed directly at the realization of the rights recognized in the Covenant have been adopted in legislative form, the Committee would , as to whether such laws create any right of action on behalf of indi- wish to be informed, inter alia viduals or groups who feel that their rights are not being fully realized. In cases where constitu- Implementation Handbook for the Convention on the Rights of the Child 56

85 tional recognition has been accorded to specific economic, social and cultural rights, or where the provisions of the Covenant have been incorporated directly into national law, the Committee would wish to receive information as to the extent to which these rights are considered to be justiciable (i.e., able to be invoked before the courts). The Committee would also wish to receive specific information as to any instances in which existing constitutional provisions relating to economic, social and cultural rights have been weakened or significantly changed.” (Committee on Economic, Social and Cultural Rights, General Comment No. 3, 1990, HRI/GEN/1/ Rev.8, paras 1, 2, 3 and 5, pp. 15 and 16) In 1998, in another General Comment, the Committee on Economic, Social and Cultural Rights expanded on States’ obligations to recognize the norms in the International Covenant in domestic i c t l r e law. a General Comment No. 8 It emphasizes that “appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring government accountability must be put in place”. It quotes two relevant principles of international law: “The first, as reflected in article 27 of the Vienna Convention on the Law of Treaties, is that ‘[A] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. In other words, States should modify the domestic legal order as necessary in order to give effect to their treaty obligations. The second principle is reflected in article 8 of the Universal Declaration of Human Rights, according to which ‘Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law’.” The General Comment notes that “In general, legally binding international human rights standards should operate directly and immediately within the domestic legal system of each State Party, thereby enabling individuals to seek enforcement of their rights before national courts and tribu- nals. The rule requiring the exhaustion of domestic remedies reinforces the primacy of national remedies in this respect. The existence and further development of international procedures for the pursuit of individual claims is important, but such procedures are ultimately only supplementary to effective national remedies.” The General Comment indicates that the Covenant does not specify particular means of implemen- tation, but that the means chosen must be adequate to fulfil obligations; while the Covenant does not formally require States to incorporate its provisions into domestic law, “such an approach is desirable”. In relation to the justiciability of economic, social and cultural rights in the Covenant, the General Comment suggests that “there is no Covenant right, which could not, in the great majority of sys- tems, be considered to possess at least some significant justiciable dimensions. It is sometimes sug- gested that matters involving the allocation of resources should be left to the political authorities rather than the courts. While the respective competences of the various branches of government must be respected, it is appropriate to acknowledge that courts are generally already involved in a considerable range of matters which have important resource implications. The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. It would also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.” The General Comment also emphasizes the importance of courts applying the principles of the Covenant either directly or as interpretive standards. (Committee on Economic, Social and Cultural Rights, General Comment No. 9, 1998, HRI/GEN/1/ Rev.8, pp. 55 to 59) IMPLEMENTATION OF RIGHTS IN THE CONVENTION 57

86 beyond statements of policy and principle, be built into the process of government at all levels but also independent monitoring by to set real and achievable targets in relation national human rights institutions, NGOs and to the full range of economic, social and (Committee on the Rights of the Child, others.” cultural and civil and political rights for all General Comment No. 5, 2003, CRC/GC/2003/5, children. The comprehensive national strategy para. 27) may be elaborated in sectoral national plans of action – for example for education and A “comprehensive national health – setting out specific goals, targeted strategy” for children implementation measures and allocation of The Committee, often quoting the principle of financial and human resources. The strategy “first call for children”, promoted at the World will inevitably set priorities, but it must not neglect or dilute in any way the detailed Summit for Children, has emphasized that chil- obligations which States Parties have accepted dren must be accorded a high, or higher, prior- under the Convention. The strategy needs ity. In stressing the need for a comprehensive i c t l r to be adequately resourced, in human and e a approach to the implementation of children’s financial terms. rights, the Committee has frequently promoted “Developing a national strategy is not a the need for a national policy or comprehensive one-off task. Once drafted the strategy will national strategy reflecting the implementation of need to be widely disseminated throughout the whole Convention. Government and to the public, including children (translated into child-friendly versions It gives more detailed advice about the develop- as well as into appropriate languages and ment and contents of such a strategy in General forms). The strategy will need to include Comment No. 5: arrangements for monitoring and continuous “The Committee commends the development review, for regular updating and for periodic of a comprehensive national strategy or reports to parliament and to the public.” national plan of action for children, built (Committee on the Rights of the Child, General on the framework of the Convention. The Comment No. 5, 2003, CRC/GC/2003/5, paras. 29 Committee expects States Parties to take to 33) account of the recommendations in its Various global meetings, including the World Concluding Observations on their periodic Summit for Children (1990), the World reports when developing and/or reviewing Conference on Human Rights (1993) and the their national strategies. If such a strategy is to be effective, it needs to relate to the United Nations General Assembly’s special ses- situation of all children, and to all the rights in sion on children (2002), have called for the the Convention. It will need to be developed development of national plans of action. The through a process of consultation, including Committee welcomes commitments made by with children and young people and those States to achieve the goals and targets set at the living and working with them... Meaningful 2002 special session on children and identified in consultation with children requires special : A World Fit for Children its outcome document, child-sensitive materials and processes; it is not “But the Committee emphasizes that making simply about extending to children access to particular commitments at global meetings adult processes. does not in any way reduce States Parties’ legal “Particular attention will need to be given to obligations under the Convention. Similarly, identifying and giving priority to marginalized preparing specific plans of action in response and disadvantaged groups of children. The to the special session does not reduce the need non-discrimination principle in the Convention for a comprehensive implementation strategy requires that all the rights guaranteed by for the Convention. States should integrate the Convention should be recognized for all their response to the 2002 special session children within the jurisdiction of States... The and to other relevant global conferences into non-discrimination principle does not prevent their overall implementation strategy for the the taking of special measures to diminish Convention as a whole. discrimination. “The outcome document also encourages “To give the strategy authority, it will States Parties to ‘consider including in their need to be endorsed at the highest level of reports to the Committee on the Rights of government. Also, it needs to be linked to the Child information on measures taken and national development planning and included results achieved in the implementation of in national budgeting; otherwise, the strategy the present Plan of Action’. The Committee may remain marginalized outside key decision- endorses this proposal; it is committed to making processes. monitoring progress towards meeting the “The strategy must not be simply a list of good commitments made at the special session and intentions; it must include a description of will provide further guidance in its revised a sustainable process for realizing the rights of children throughout the State; it must go guidelines for periodic reporting under the Implementation Handbook for the Convention on the Rights of the Child 58

87 purpose of making children more visible in (Committee on the Rights of the Convention.” Child, General Comment No. 5, 2003, Government and to coordination to ensure CRC/GC/2003/5, paras. 35 and 36) respect for children’s rights across Government and at all levels of Government. Such a unit Thus, when it examined Italy’s Second Report, it can be given responsibility for developing proposed that the State should expedite adoption the comprehensive children’s strategy and of the National Plan of Action and monitoring its implementation, as well as for coordinating reporting under the Convention.” “Ensure harmonization between the (Committee on the Rights of the Child, General National Plan of Action and the plan for the Comment No. 5, 2003, CRC/GC/2003/5, para. 39) implementation of the UNGASS outcome document.” (Italy CRC/C/15/Add.198, para. 13) One of the most common “subjects of concern” Similarly, the Committee told India to expressed by the Committee in its Concluding Observations on States Parties’ reports has been “... take all necessary measures to adopt, i c t l r in consultation with all relevant partners, a lack of coordination, and it has made frequent e a including the civil society, a new Plan of recommendations for “effective coordination”. Action for Children that covers all areas of One product of coordination across government the Convention, includes the Millennium is the comprehensive national strategy or plan of Development Goals, and fully reflects ‘A world action for children. This then in turn becomes the fit for children’...” (India CRC/C/15/Add.228, framework for coordinated action for the realiza- para. 16) tion of children’s rights, as for example, in the Coordinating implementation: Committee’s recommendations to Mauritius: need for permanent government “The Committee recommends that the State mechanisms Party strengthen coordination between the The Committee has made clear that it sees the various governmental mechanisms involved in children’s rights, at both the national and process of implementation as a continuing pro- local levels, with a view to developing a cess requiring “permanent” mechanisms in gov- comprehensive policy on children and ensuring ernment. Coordination is the key aim, as well as effective evaluation of the implementation of increasing visibility of children in government. (Mauritius the Convention in the country.” Again, the Committee emphasizes that it is not CRC/C/15/Add.64, para. 23) advisable for it to attempt to prescribe detailed When it examined the Second Report from arrangements appropriate for very different sys- Mauritius in 2006, the Committee commented: tems of government across States Parties: “While noting the role of the Ministry “There are many formal and informal of Women’s Rights, Child Development, ways of achieving effective coordination, Family Welfare and Consumer Protection, including for example inter-ministerial and the Committee is concerned about the fact interdepartmental committees for children. that coordination between the different The Committee proposes that States Parties, government departments and institutions if they have not already done so, should dealing with children’s rights is insufficient. review the machinery of government from “The Committee recommends that the State the perspective of implementation of the Party further strengthen the coordination Convention and in particular of the four between the various bodies and institutions articles identified as providing general at all levels and pay particular attention to the principles... various regions of the State Party.” (Mauritius, “Many States Parties have with advantage CRC/C/MUS/CO/2, paras. 12 and 13) developed a specific department or unit close to the heart of Government, in some cases in The Committee has referred to lack of coordina- the President’s or Prime Minister’s or Cabinet tion between government departments and min- office, with the objective of coordinating istries and other governmental bodies, between implementation and children’s policy. As noted federal or central government and provincial, above, the actions of virtually all government regional or local government, between govern- departments impact on children’s lives. It is ment and public and private bodies, including not practicable to bring responsibility for non-governmental organizations dealing with all children’s services together into a single human rights and children’s rights, and between department, and in any case doing so could have the danger of further marginalizing such bodies themselves. children in Government. But a special unit, Decentralization and federalization if given high-level authority - reporting The Committee has criticized over-centraliza- directly, for example, to the Prime Minister, tion of decision-making and policy implemen- the President or a Cabinet Committee on children – can contribute both to the overall tation, but also drawn attention to the threat IMPLEMENTATION OF RIGHTS IN THE CONVENTION 59

88 local authorities and must establish permanent decentralization can pose to the realization of monitoring mechanisms to ensure that the the rights of the child: Convention is respected and applied for “While welcoming the decentralization process all children within its jurisdiction without undertaken by the State Party, the Committee discrimination. Further, there must be is concerned that it could have a negative safeguards to ensure that decentralization or impact on the protection of human rights and devolution does not lead to discrimination in child rights. the enjoyment of rights by children in different “The Committee recommends that the State regions.” (Committee on the Rights of the Child, Party work to ensure that the provincial law General Comment No. 5, 2003, CRC/GC/2003/5, and practices are in conformity with the paras. 40 and 41) Convention.” (Indonesia CRC/C/15/Add.223, paras. 16 and 17) So the Committee told Canada, following exami- nation of its Second Report: “In view of the current trend towards i c t “The Committee notes that the application l r e decentralization in the State Party, a of a considerable part of the Convention falls the Committee is concerned about the within the competence of the provinces and sustainability of the funding for the provision territories, and is concerned that this may lead, of health, education and social services for in some instances, to situations where the children. It is also concerned by the absence minimum standards of the Convention are not of a regulating and monitoring mechanism to applied to all children owing to differences at ensure appropriate distribution of resources to the provincial and territorial level. children by local authorities.” (Hungary “The Committee urges the Federal CRC/C/15/Add.87, para. 10) Government to ensure that the provinces and territories are aware of their obligations under It reiterated these concerns when it exam- the Convention and that the rights in the ined Hungary’s Second Report in 2006, com- Convention have to be implemented in all the menting that the Child Protection Act of 1997 provinces and territories through legislation placed responsibilities on the counties and local and policy and other appropriate measures.” authorities, without providing them with suffi- (Canada CRC/C/15/Add.215, paras. 8 and 9) cient means to establish effective services. The Privatization Committee recommended that the obligations The Committee notes in its General Comment that placed on counties and local authorities should be the process of privatization of services can have reassessed and they should be supported with suf- a serious impact on the recognition and realiza- ficient human and financial resources to establish tion of children’s rights. The Committee devoted an effective child protection system and adequate its 2002 Day of General Discussion to the theme child welfare services (Hungary CRC/C/HUN/ “The private sector as service provider and its role CO/2, paras. 7 and 8). in implementing child rights”, defining the pri- In its General Comment No. 5, the Committee vate sector as including businesses, NGOs and emphasizes that devolution does not reduce the other private associations, both for profit and not- State’s obligations: for-profit (Report on the twenty-ninth session, “The Committee has found it necessary to January/February 2002, CRC/C/114, pp. 187 et emphasize to many States that decentralization .). Following that Day of General Discussion, seq of power, through devolution and delegation the Committee adopted detailed recommendations of government, does not in any way reduce which it refers to in General Comment No. 5: the direct responsibility of the State Party’s “The Committee emphasizes that States Parties Government to fulfil its obligations to all to the Convention have a legal obligation to children within its jurisdiction, regardless of respect and ensure the rights of children as the State’s structure. stipulated in the Convention, which includes “The Committee reiterates that in all the obligation to ensure that non-state service circumstances the State which ratified or providers operate in accordance with its acceded to the Convention remains responsible provisions, thus creating indirect obligations for ensuring the full implementation of the on such actors. Convention throughout the territories under “The Committee emphasizes that enabling its jurisdiction. In any process of devolution, the private sector to provide services, run States Parties have to make sure that the institutions and so on does not in any way devolved authorities do have the necessary lessen the State’s obligation to ensure for financial, human and other resources all children within its jurisdiction the full effectively to discharge responsibilities for recognition and realization of all rights in the the implementation of the Convention. The Convention (arts. 2(1) and 3(2)). Article 3(1) Governments of States Parties must retain establishes that the best interests of the child powers to require full compliance with the Convention by devolved administrations or shall be a primary consideration in all actions Implementation Handbook for the Convention on the Rights of the Child 60

89 concerning children, whether undertaken by consideration in all actions concerning children public or private bodies. Article 3(3) requires (see article 3, page 38). In General Comment No. 5, the establishment of appropriate standards it sets out the implications: by competent bodies (bodies with the “Ensuring that the best interests of the child appropriate legal competence), in particular, are a primary consideration in all actions in the areas of health, and with regard to the concerning children (art. 3(1)), and that all the number and suitability of staff. This requires provisions of the Convention are respected rigorous inspection to ensure compliance with in legislation and policy development and the Convention. The Committee proposes delivery at all levels of government demands a that there should be a permanent monitoring continuous process of child impact assessment mechanism or process aimed at ensuring (predicting the impact of any proposed law, that all State and non-State service providers policy or budgetary allocation which affects respect the Convention.” (Committee on the children and the enjoyment of their rights) and Rights of the Child, General Comment No. 5, child impact evaluation (evaluating the actual i c t l 2003, CRC/GC/2003/5, paras. 42 to 44. See also r e a impact of implementation). This process needs article 3(2), page 40 and article 3(3), page 41.) to be built into government at all levels and as early as possible in the development of policy. When it examined Lebanon’s Third Report, the “Self-monitoring and evaluation is an Committee expressed appreciation at the State’s obligation for Governments. But the close collaboration with non-governmental orga- Committee also regards as essential the nizations and the active role of civil society in the independent monitoring of progress implementation of the rights of the child and in towards implementation by, for example, the provision of education, health and social ser- parliamentary committees, NGOs, academic vices. But it continued: institutions, professional associations, youth groups and independent human rights “As regards the process of privatizing or institutions... contracting out services to non-governmental “The Committee commends certain States organizations, the Committee notes with which have adopted legislation requiring the concern the weak accountability and preparation and presentation to parliament transparency of this process, as well as the lack and/or the public of formal impact analysis of critical information provided by external statements. Every State should consider how it monitoring and assessment mechanisms. can ensure compliance with article 3(1) and do “The Committee recommends that the State so in a way which further promotes the visible Party take into account the recommendations integration of children in policy-making and adopted on its Day of General Discussion on the (Committee on the sensitivity to their rights.” Private Sector as Service Provider and its Role in Rights of the Child, General Comment No. 5, Implementing Child Rights (CRC/C/121) and: 2003, CRC/GC/2003/5, paras. 45 to 47) (a) Continue to strengthen its cooperation with non-governmental organizations, and Budgeting and budgetary analysis involve them systematically at all stages in the The Committee has emphasized that States’ obli- implementation of the Convention, as well as gation to implement economic, social and cultural in policy formulation; rights “to the maximum extent of their available (b) Provide non-governmental organizations resources” implies adequate budgetary analysis. with adequate financial and other resources when they are involved in discharging It is extremely rare for children to be as visible governmental responsibilities and duties in the economic policies of government as the with regard to the implementation of the Committee implies they should be. Most govern- Convention; ment departments have no idea what proportion (c) Ensure, for example, by providing guidelines and standards for service provision of their budget is spent on children, few know that non-governmental organizations, both what impact their expenditure has on children. for-profit as well as not-for-profit, fully comply The Committee has emphasized that monitoring with the principles and provisions of the and evaluation in this sphere, as in all others, is Convention on the Rights of the Child; and essential for effective implementation strategies, (d) When privatizing or contracting out as General Comment No. 5 sets out: services to non-governmental “In its reporting guidelines and in the organizations, enter into detailed agreements consideration of States Parties’ reports, the with the service providers, ensure effective Committee has paid much attention to the monitoring of implementation as well as identification and analysis of resources for (Lebanon transparency of the entire process.” children in national and other budgets. No CRC/C/LBN/CO/3, paras. 21 and 22) State can tell whether it is fulfilling children’s Child impact analysis economic, social and cultural rights ‘to the The Committee has looked for processes which maximum extent of ... available resources’, ensure that children’s best interests are a primary as it is required to do under article 4, unless IMPLEMENTATION OF RIGHTS IN THE CONVENTION 61

90 it can identify the proportion of national and health and welfare services, all essential to the realization of the right of the child. other budgets allocated to the social sector “The Committee strongly recommends that the and, within that, to children, both directly State Party, in accordance with article 4 of the and indirectly. Some States have claimed it is Convention, increase budget allocations for not possible to analyse national budgets in the implementation of the rights recognized this way. But others have done it and publish in the Convention, ensure a more balanced annual ‘children’s budgets’. The Committee distribution of resources throughout the needs to know what steps are taken at all country and prioritize budgetary allocations levels of Government to ensure that economic to ensure implementation of the economic, and social planning and decision-making and social and cultural rights of all children, budgetary decisions are made with the best including those belonging to financially interests of children as a primary consideration disadvantaged groups, such as Afro-Colombian and that children, including in particular (Colombia CRC/C/COL/ and indigenous children.” marginalized and disadvantaged groups of i c t l CO/3, paras. 20 and 21) r children, are protected from the adverse e a effects of economic policies or financial “The Committee expresses its concern downturns.” (Committee on the Rights of that budgetary allocations for children, in the Child, General Comment No. 5, 2003, particular in the fields of health and education, CRC/GC/2003/5, para. 51) are insufficient and that often the resources The Committee has made various consistent allocated do not correspond to the needs. It further notes that the decentralization process comments on budgetary issues in its examina- started in 1999 is held back by limited financial tion of States Parties’ reports, almost invariably and human resources. seeking more analysis and information. The over- “In light of article 4 of the Convention, the all proportion of national and local budgets allo- Committee encourages the State Party: cated to social programmes must be adequate, (a) To enforce effectively the Preliminary and there must be sufficient budgetary provision Poverty Reduction Strategy; to protect and promote children’s rights. Lack of (b) To identify clearly its priorities with available resources cannot be used as a reason for respect to child rights issues in order to ensure that funds are allocated ‘to the not establishing social security programmes and maximum extent of ... available resources’. social safety nets. For example: The Committee fully supports the State Party “The Committee is concerned about the very in seeking international cooperation for the limited information on budget allocations full implementation of the economic, social for the implementation of the CRC. These and cultural rights of children, in particular allocations seem to be insufficient to respond children belonging to the most vulnerable to national and local priorities for the groups in society; protection and promotion of children’s rights. (c) To identify the amount and proportion of “The Committee recommends that the the budget spent on children at the national State Party pay particular attention to and local levels in order to evaluate the impact the full implementation of article 4 of the (Moldova of expenditures on children.” Convention by increasing and prioritizing CRC/C/15/Add.192, paras. 14 and 15) budgetary allocations to ensure at all levels National bodies concerned with overall budget- the implementation of the rights of the child and that particular attention is paid to the ing should be linked directly to those develop- protection of the rights of children belonging ing policy for children and implementation of the to vulnerable groups including children with Convention: disabilities, children affected or/and infected “... the Committee suggests that the ministries by HIV/AIDS, street children and children responsible for overall planning and budgeting living in poverty. It further recommends that be fully involved in the activities of the Higher the State Party provide specific and detailed Committee on Child Welfare and the National information on the allocations of these Committee on Children, with a view to budgets at the national and district level.” ensuring that their decisions have a direct and (Ghana CRC/C/GHA/CO/2, paras. 17 and 18) (Syrian Arab immediate impact on the budget.” Republic CRC/C/15/Add.70, para. 26) “The Committee regrets the lack of clear information on budget allocations and is The Committee has expressed concern at the concerned that one of the major causes of impact of tax evasion and corruption on avail- poverty in Colombia is the unequal distribution able resources. Examining the Third Report of of state funds, which severely impacts on the the Russian Federation, the Committee expressed well-being of children, in particular affecting serious concern those from more vulnerable sectors of society. In particular, the Committee is deeply concerned “... that widespread corruption, inter alia , in the health and education sectors as well as in over the declining expenditure for education, Implementation Handbook for the Convention on the Rights of the Child 62

91 adoption procedures, is affecting children in spending cuts on children; and the needs of the full enjoyment of their rights.” most vulnerable groups of children must be given priority. For example: It went on to recommend: “The Committee urges the Government “The State Party should seriously address of Peru to take all the necessary steps to and take all necessary measures to prevent minimize the negative impact of the structural (Russian Federation CRC/C/RUS/CO/3, corruption.” adjustment policies on the situation of paras. 19 and 20) children. The authorities should, in the light of articles 3 and 4 of the Convention, undertake “Concern is also expressed at the widespread all appropriate measures to the maximum practices of tax evasion and corruption which extent of their available resources to ensure are believed to have an effect on the level of that sufficient resources are allocated to resources available for the implementation of children...” (Peru CRC/C/15/Add.8, para. 19) the Convention. “The Committee recommends that the State i c t l r e “... Budgetary allocations for the a Party undertake all appropriate measures implementation of economic, social and to improve its system of tax collection and cultural rights should be ensured during the reinforce its efforts to eradicate corruption.” period of transition to market economy to the (Georgia CRC/C/15/Add.124, paras. 18 and 19) maximum extent of available resources and Effects of transition to market in the light of the best interests of the child.” (Ukraine CRC/C/15/Add.42, para. 20) economy and other forced economic adjustments The Committee returned to these issues in detail The Committee has been highly sensitive to when it examined Ukraine’s Second Report: the impact on children of the world recession, “The Committee notes the priority accorded economic adjustments and cutbacks that have by the State Party to health and education occurred during the 1990s. It endorsed the fol- and the information that the budget has lowing recommendation during its 1999 two-day been increased for 2000-2001. However, the tenth anniversary workshop: Committee remains concerned about the low level of resources in general for social services, “The Committee calls attention to the fact that health and education, which has a negative economic policies are never child-rights neutral. impact on the quality and accessibility of The Committee calls on civil society to assist services, especially affecting families with it in seeking the support of key international children living in poverty. The Committee is leaders, and in particular the High Commissioner also concerned that the ‘Children of Ukraine’ for Human Rights, the Executive Director of programme is not accorded adequate UNICEF, and the President of the World Bank, to funding. The Committee is further concerned examine how macro-economic and fiscal policies that readjustment programmes may have a impact on children’s rights, and how these disproportionately negative effect on children policies can be reformed so as to make them if not appropriately addressed in the planning more beneficial to the implementation of the and budgeting of social services. (Report on the twenty-second rights of the child.” “In light of articles 2, 3 and 6 of the session, September/October 1999, CRC/C/90, Convention, the Committee recommends para. 291 (m)) that the State Party pay particular attention The Committee has expressed consistent concern to the full implementation of article 4 of the at the effects of transition to a market economy Convention by: on children and echoes this in General Comment (a) Further continuing to increase the budget for the implementation of the Convention No. 5 : and prioritizing budgetary allocations to “Emphasizing that economic policies are never ensure implementation of economic, social neutral in their effect on children’s rights, the and cultural rights of children to the maximum Committee has been deeply concerned by the extent of available resources, in particular often negative effects on children of structural to socially marginalized groups, taking into adjustment programmes and transition to account the decentralization of the provision a market economy. The implementation of social services and of public finances; duties of article 4 and other provisions of the (b) Strengthening its efforts to implement the Convention demand rigorous monitoring of poverty reduction strategy (2001); the effects of such changes and adjustment of (c) Ensuring sufficient resources for the full policies to protect children’s economic, social implementation of state programmes and (Committee on the Rights and cultural rights.” policies for children, including ‘Children of of the Child, General Comment No. 5, 2003, Ukraine’; CRC/GC/2003/5, para. 52) (d) Identifying the amount and proportion of States must minimize the negative effects of the State’s budget spent on children through public and private institutions or organizations structural adjustment programmes, and any IMPLEMENTATION OF RIGHTS IN THE CONVENTION 63

92 in order to evaluate the impact of the obligation for governments”. But the Committee expenditures and also, in view of the costs, the also regards independent monitoring of progress accessibility, the quality and the effectiveness towards implementation as essential, including by, of the services for children in the different for example, parliamentary committees, NGOs, sectors.” (Ukraine CRC/C/15/Add.191, paras. 17 academic institutions, professional associations, and 18) youth groups and independent human rights insti- Economic sanctions and respect for tutions. General Comment No. 5 states: economic, social and cultural rights “Collection of sufficient and reliable data The Committee on Economic, Social and Cultural on children, disaggregated to enable identification of discrimination and/or Rights issued a General Comment in 1997 on the disparities in the realization of rights, is relationship between economic sanctions and an essential part of implementation. The respect for economic, social and cultural rights. Committee reminds States Parties that data The Committee notes that economic sanctions i c t collection needs to extend over the whole l r e a “almost always have a dramatic impact on the period of childhood, up to the age of 18 years. rights recognized in the Covenant [International It also needs to be coordinated throughout Covenant on Economic, Social and Cultural the jurisdiction, ensuring nationally applicable Rights]. Thus, for example, they often cause sig- indicators. States should collaborate with nificant disruption in the distribution of food, appropriate research institutes and aim to pharmaceuticals and sanitation supplies, jeop- build up a complete picture of progress ardize the quality of food and the availability of towards implementation, with qualitative as well as quantitative studies. The reporting clean drinking water, severely interfere with the guidelines for periodic reports call for detailed functioning of basic health and education sys- disaggregated statistical and other information tems, and undermine the right to work...”. covering all areas of the Convention. It is The General Comment emphasizes the impor- essential not merely to establish effective tance of reducing to a minimum the negative systems for data collection, but to ensure that the data collected are evaluated and impact of sanctions on vulnerable groups within used to assess progress in implementation, the society – including children: “In adopting this to identify problems and to inform all policy General Comment the sole aim of the Committee development for children. Evaluation requires is to draw attention to the fact that the inhabit- the development of indicators related to all ants of a given country do not forfeit their basic rights guaranteed by the Convention. economic, social and cultural rights by virtue of “The Committee commends States Parties any determination that their leaders have violated which have introduced annual publication norms relating to international peace and secu- of comprehensive reports on the state of rity. The aim is not to give support or encour- children’s rights throughout their jurisdiction. agement to such leaders, nor is it to undermine Publication and wide dissemination of the legitimate interests of the international com- and debate on such reports, including in parliament, can provide a focus for broad munity in enforcing respect for the provisions of public engagement in implementation. the Charter of the United Nations and the gen- Translations, including child-friendly versions, eral principles of international law. Rather, it is to are essential for engaging children and insist that lawlessness of one kind should not be minority groups in the process. met by lawlessness of another kind which pays no “The Committee emphasizes that, in many heed to the fundamental rights that underlie and cases, only children themselves are in a give legitimacy to any such collective action.” position to indicate whether their rights (Committee on Economic, Social and Cultural are being fully recognized and realized. Rights, General Comment No. 8, 1997, HRI/ Interviewing children and using children as GEN/1/Rev.8, pp. 51 to 55) researchers (with appropriate safeguards) is likely to be an important way of finding out, The Committee on the Rights of the Child has for example, to what extent their civil rights, drawn attention to this General Comment in its including the crucial right set out in article Concluding Observations on certain States which 12, to have their views heard and given due have experienced sanctions. consideration, are respected within the family, in schools and so on.” (Committee on the Rights Monitoring and data collection of the Child, General Comment No. 5, 2003, The Committee has frequently noted that with- CRC/GC/2003/5, paras. 48 to 50) out sufficient data collection, including disaggre- Guidelines for Periodic Reports (Revised In its gated data, it is impossible to assess the extent to 2005) the Committee asks for detailed statistical which the Convention has been implemented. In and other information under most articles (see General Comment No. 5, the Committee empha- self-monitoring and evaluation is an sizes that “ Appendix 3, page 701, Annex). Implementation Handbook for the Convention on the Rights of the Child 64

93 to promoting, protecting and monitoring The Committee sets out the independent monitor- children’s human rights and urges ing role of national human rights institutions in Governments to give them non-directive its General Comment No. 2 (2002) on ”The role support and to develop positive formal as of independent national human rights institutions well as informal relationships with them. in the protection and promotion of the rights of The engagement of NGOs in the reporting the child”: process under the Convention, coming within “The role of national human rights the definition of ‘competent bodies’ under institutions is to monitor independently the article 45(a), has in many cases given a real State’s compliance and progress towards impetus to the process of implementation implementation and to do all it can to ensure as well as reporting. The NGO Group for the full respect for children’s rights. While this Convention on the Rights of the Child has a may require the institution to develop projects very welcome, strong and supportive impact to enhance the promotion and protection on the reporting process and other aspects i c t l of children’s rights, it should not lead to of the Committee’s work. The Committee r e a the Government delegating its monitoring underlines in its reporting guidelines that obligations to the national institution. It is the process of preparing a report ‘should essential that institutions remain entirely free encourage and facilitate popular participation to set their own agenda and determine their and public scrutiny of government policies’. (Committee on the Rights of own activities.” The media can be valuable partners in the the Child, General Comment No. 2, 2002, process of implementation.” (Committee on the Rights of the Child, General Comment No. 5, 2003, CRC/GC/2002/2, para. 25) CRC/GC/2003/5, paras. 56 to 59) General Comment No. 2 provides detailed guid- In examining States’ reports, the Committee often ance on the establishment and operation of inde- calls for a systematic approach to involvement of pendent human rights institutions for children NGOs, and often highlights the need to engage – see below, page 68. (For full text see www. with children’s organizations. For example: ohchr.org/english / bodies/crc/comments.htm.) “Despite the existence of a vibrant civil Participation of civil society society, the Committee is concerned that The Committee has stressed that, while imple- non-governmental organizations are not mentation is an obligation for States Parties, coor- fully involved in the Government’s efforts to dination and action to implement the Convention implement the Convention. “The Committee emphasizes the important should extend beyond government to all segments role civil society plays as a partner in of society. General Comment No. 5 expands on implementing the provisions of the this: Convention, and recommends that the State “Implementation is an obligation for States Party involve non-governmental organizations Parties, but needs to engage all sectors of in a more systematic and coordinated manner society, including children themselves. The throughout all stages of the implementation of Committee recognizes that responsibilities the Convention, including policy formulation, to respect and ensure the rights of children at the national and local levels.” (Poland extend in practice beyond the State and CRC/C/15/Add.194, paras. 21 and 22) State-controlled services and institutions to include children, parents and wider families, “The Committee notes the information other adults, and non-State services and on good government cooperation with organizations... national associations in the development and “Article 12 of the Convention, as already welfare sectors, as well as with international emphasized ..., requires due weight to organizations. However, it is concerned that be given to children’s views in all matters little effort has been made to actively involve affecting them, which plainly includes civil society, particularly in the area of civil implementation of ‘their’ Convention. rights and freedoms, in the implementation of “The State needs to work closely with NGOs the Convention. in the widest sense, while respecting their “The Committee recommends that the State autonomy; these include, for example, Party: human rights NGOs, child- and youth-led (a) Adopt a systematic approach to involving organizations and youth groups, parent civil society, including children’s associations, and family groups, faith groups, academic throughout all stages in the implementation of institutions and professional associations. the Convention, including with respect to civil NGOs played a crucial part in the drafting of rights and freedoms; the Convention and their involvement in the (b) Ensure that legislation regulating NGOs process of implementation is vital. (e.g., the Private Associations and Institutions “The Committee welcomes the development Act No. 93 of 1958) conforms to article 15 of the Convention and other international of NGO coalitions and alliances committed IMPLEMENTATION OF RIGHTS IN THE CONVENTION 65

94 “The Committee welcomes the enactment standards on freedom of association, as a step in facilitating and strengthening their of the 2002 Bill reinforcing the role of the participation.” (Syrian Arab Republic CRC/C/15/ Children’s Ombudsman and notes with Add.Add.212, paras. 19 and 20) appreciation the many activities undertaken by the Children’s Ombudsman for the Awareness-raising and training implementation of children’s rights. It is, The Committee has linked the obligation under however, the view of the Committee that article 42, to make the provisions and principles further improvements can be accomplished. of the Convention widely known to adults and The Committee recommends that: children alike, to article 4, as a general measure of (a) The State Party consider providing the Children’s Ombudsman with the mandate to implementation. In the overall process of aware- investigate individual complaints; ness-raising, the Committee has emphasized the (b) The annual report of the Children’s importance of incorporating the Convention in Ombudsman be presented to the Parliament, the school curriculum as well as in training for i c t l r e together with information about measures a those working with and for children (General the Government intends to take to implement Comment No. 5 includes discussion of article 42; the recommendations of the Children’s see page 627). Ombudsman.” (Sweden CRC/C/15/Add. 248, paras. 6 and 7) Independent human rights institutions for children The Committee explains that while adults and The Committee believes that every State needs an children alike need independent national human independent human rights institution with respon- rights institutions (NHRIs) to protect their sibility for promoting and protecting children’s human rights, additional justifications exist for rights. In its General Comment No. 2 on “The ensuring that child’s human rights are given spe- role of independent national human rights insti- cial attention: tutions in the promotion and protection of chil- “These include the facts that children’s (CRC/GC/2002/2), the Committee dren’s rights” developmental state makes them particularly notes that its principal concern is that the institu- vulnerable to human rights violations; their tion, whatever its form, should be able, indepen- opinions are still rarely taken into account; dently and effectively, to monitor, promote and most children have no vote and cannot play protect children’s rights. When it examines States’ a meaningful role in the political process reports, the Committee co nsistently recommends that determines Governments’ response to human rights; children encounter significant the establishment of independent human rights problems in using the judicial system to institutions – a children’s ombudsman, commis- protect their rights or to seek remedies for sion or commissioner, or a focal point on children’s violations of their rights; and children’s access rights developed within a national human rights to organizations that may protect their rights commission or general ombudsman institution. (Committee on the Rights is generally limited.” So, for example, the Committee told Azerbaijan: of the Child, General Comment No. 2, 2002, “The Committee recommends that the State CRC/GC/2002/2, para. 5) Party, taking into account the Committee’s The Committee notes that specialist independent general comment No. 2 on the role of independent national human rights institutions human rights institutions for children, ombud- in the promotion and protection of the rights spersons or commissioners for children’s rights, of the child (CRC/GC/2002/2), include within the have been established in a growing number of Office of the Ombudsman either an identifiable States Parties. Where resources are limited, con- commissioner specifically responsible for sideration must be given to ensuring that the children’s rights or a specific section or division available resources are used most effectively responsible for children’s rights. Furthermore, it for the promotion and protection of everyone’s should be provided with adequate human and human rights, including children’s, and in this financial resources, deal with complaints from children in a child-sensitive and expeditious context development of a broad-based NHRI that manner and provide remedies for violations of includes a specific focus on children is likely their rights under the Convention.” (Azerbaijan to constitute the best approach. A broad-based CRC/C/AZE/CO/2, para. 15) NHRI should include within its structure either an identifiable commissioner specifically respon- Where such institutions have already been estab- sible for children’s rights, or a specific section or lished, the Committee calls upon States to review division responsible for children’s rights. The their status and effectiveness for promoting and Committee underlines that it is essential that protecting children’s rights. So when it examined promotion and protection of children’s rights Sweden’s Third Report, the Committee com- mented: is “mainstreamed” and that all human rights Implementation Handbook for the Convention on the Rights of the Child 66

95 institutions existing in a country work closely affect their independence (CRC/GC/2002/2, para. 10). They must have the power to consider para. 6). together to this end (CRC/GC/2002/2, individual complaints and petitions and to carry The General Comment emphasizes that NHRIs out investigations, including those submitted on should be established in compliance with the behalf of or directly by children: Principles relating to the status of national insti- “In order to be able to effectively carry out tutions for the promotion and protection of such investigations, they must have the powers human rights (The Paris Principles), adopted by to compel and question witnesses, access the General Assembly in 1993. These minimum relevant documentary evidence and access standards provide guidance for the establish- places of detention. They also have a duty to ment, competence, responsibilities, composition, seek to ensure that children have effective independence, methods of operation, and quasi- remedies – independent advice, advocacy and complaints procedures – for any breaches of judicial activities of such national bodies their rights. Where appropriate, NHRIs should i c t l (CRC/GC/2002/2, para. 4. For full text of Paris r e a undertake mediation and conciliation of Principles, see A/RES/48/134.) complaints. They should, if possible, be constitutionally “NHRIs should have the power to support children taking cases to court, including the entrenched and must at least be established in power (a) to take cases concerning children’s legislation: issues in the name of the NHRI and (b) to “It is the view of the Committee that their intervene in court cases to inform the court mandate should include as broad a scope as about the human rights issues involved in the possible for promoting and protecting human (Committee on the Rights of the Child, case.” rights, incorporating the Convention on the General Comment No. 2, 2002, CRC/GC/2002/2, Rights of the Child, its Optional Protocols paras. 13 and 14) and other relevant international human rights instruments – thus effectively covering The Committee highlights the importance of children’s human rights, in particular their civil, institutions establishing and maintaining direct political, economic, social and cultural rights... contact with children: “NHRIs should be accorded such powers as “NHRIs should be geographically and are necessary to enable them to discharge physically accessible to all children. In the their mandate effectively, including the spirit of article 2 of the Convention, they power to hear any person and obtain any should proactively reach out to all groups of information and document necessary for children, in particular the most vulnerable and assessing the situations falling within their disadvantaged, such as (but not limited to) competence. These powers should include children in care or detention, children from the promotion and protection of the rights minority and indigenous groups, children of all children under the jurisdiction of the with disabilities, children living in poverty, State Party in relation not only to the State refugee and migrant children, street children but to all relevant public and private entities.” and children with special needs in areas such (Committee on the Rights of the Child, General as culture, language, health and education. Comment No. 2, 2002, CRC/GC/2002/2, paras. 8 NHRI legislation should include the right of and 9) the institution to have access in conditions of privacy to children in all forms of alternative NHRIs must also have the right care and to all institutions that include “... to report directly, independently and children. separately on the state of children’s rights to “NHRIs have a key role to play in promoting the public and to parliamentary bodies. In respect for the views of children in all matters this respect, States Parties must ensure that affecting them, as articulated in article 12 an annual debate is held in Parliament to of the Convention, by Government and provide parliamentarians with an opportunity throughout society. This general principle to discuss the work of the NHRI in respect of should be applied to the establishment, children’s rights and the State’s compliance organization and activities of national human with the Convention.” (CRC/GC/2002/2, para. 18) rights institutions. Institutions must ensure that they have direct contact with children and NHRIs should be established through a consult- that children are appropriately involved and ative, inclusive and transparent process. They consulted. Children’s councils, for example, should have appropriate and transparent appoint- could be created as advisory bodies for NHRIs ment procedures, including an open and competi- to facilitate the participation of children in tive selection process (CRC/GC/2002/2, para. 12). matters of concern to them. In order to secure their independence, they must “NHRIs should devise specially tailored have adequate resources and funding and free- consultation programmes and imaginative dom from forms of financial control that might communication strategies to ensure full IMPLEMENTATION OF RIGHTS IN THE CONVENTION 67

96 compliance with article 12 of the Convention. The General Comment emphasizes that NHRIs A range of suitable ways in which children can should contribute independently of government to communicate with the institution should be the reporting process under the Convention on the established.” (Committee on the Rights of Rights of the Child (paras. 20 to 24; see article 44, the Child, General Comment No. 2, 2002, page 643). It sets out a non-exhaustive list of pro- CRC/GC/2002/2, paras. 15 to 17) posed activities for these institutions (see box). Recommended activities for independent human rights institutions for children The following is an indicative, but not exhaustive, list of the types of activities which NHRIs should i c t l carry out in relation to the implementation of children’s rights in light of the general principles of r e a : the Convention. They should (a) Undertake investigations into any situation of violation of children’s rights, on complaint or on their own initiative, within the scope of their mandate; (b) Conduct inquiries on matters relating to children’s rights; (c) Prepare and publicize opinions, recommendations and reports, either at the request of national authorities or on their own initiative, on any matter relating to the promotion and protection of children’s rights; (d) Keep under review the adequacy and effectiveness of law and practice relating to the protec- tion of children’s rights; (e) Promote harmonization of national legislation, regulations and practices with the Convention on the Rights of the Child, its Optional Protocols and other international human rights instru- ments relevant to children’s rights and promote their effective implementation, including through the provision of advice to public and private bodies in construing and applying the Convention; (f) Ensure that national economic policy makers take children’s rights into account in setting and evaluating national economic and development plans; (g) Review and report on the Government’s implementation and monitoring of the state of chil- dren’s rights, seeking to ensure that statistics are appropriately disaggregated and other information collected on a regular basis in order to determine what must be done to realize children’s rights; (h) Encourage ratification of or accession to any relevant international human rights instruments; (i) In accordance with article 3 of the Convention requiring that the best interests of children should be a primary consideration in all actions concerning them, ensure that the impact of laws and policies on children is carefully considered from development to implementation and beyond; (j) In light of article 12, ensure that the views of children are expressed and heard on matters con- cerning their human rights and in defining issues relating to their rights; (k) Advocate for and facilitate meaningful participation by children’s rights NGOs, including organizations comprised of children themselves, in the development of domestic legislation and international instruments on issues affecting children; (l) Promote public understanding and awareness of the importance of children’s rights and, for this purpose, work closely with the media and undertake or sponsor research and educational activities in the field; (m) In accordance with article 42 of the Convention which obligates States Parties to “make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike”, sensitize the Government, public agencies and the general public to the provisions of the Convention and monitor ways in which the State is meeting its obligations in this regard; Implementation Handbook for the Convention on the Rights of the Child 68

97 (n) Assist in the formulation of programmes for the teaching of, research into and integration of children’s rights in the curricula of schools and universities and in professional circles; (o) Undertake human rights education which specifically focuses on children (in addition to pro- moting general public understanding about the importance of children’s rights); (p) Take legal proceedings to vindicate children’s rights in the State or provide legal assistance to children; (q) Engage in mediation or conciliation processes before taking cases to court, where appropriate; inter- (r) Provide expertise in children’s rights to the courts, in suitable cases as amicus curiae or venor; i c t (s) In accordance with article 3 of the Convention which obliges States Parties to “ensure that l r e a 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”, undertake visits to juvenile homes (and all places where children are detained for reform or punishment) and care institutions to report on the situation and to make recommendations for improvement; (t) Undertake such other activities as are incidental to the above. (Extract from Committee on the Rights of the Child General Comment No. 2, “The role of national human rights institutions in the promotion and protection of children’s rights”, 2002, CRC/GC/ 2002/2. For full text see www.ohchr.org/english/bodies/crc/comments.htm.) other global meetings, including the United International cooperation for Nations General Assembly special session on implementation children, States have pledged themselves, in In its comments on general measures of imple- particular, to international cooperation to mentation, the Committee has urged many eliminate poverty. countries to seek and use international coopera- “The Committee advises States Parties that tion and technical assistance. It has also encour- the Convention should form the framework aged donor countries to ensure that their aid for international development assistance programmes follow the lines of the Convention related directly or indirectly to children and that programmes of donor States should be and establish a clear priority for children. Its rights-based. The Committee urges States to Guidelines for Periodic Reports (Revised 2005) meet internationally agreed targets, including asks for information from donor States on human the United Nations target for international and financial resources allocated to programmes development assistance of 0.7 per cent for children, in particular within bilateral assis- of gross domestic product. This goal was tance programmes; States receiving international reiterated along with other targets in the assistance or development aid should provide Monterrey Consensus, arising from the 2002 information on the total resources received and International Conference on Financing for the percentage allocated to programmes for chil- Development. The Committee encourages dren (CRC/C/58/Rev.1, para. 12). States Parties that receive international aid and assistance to allocate a substantive part of General Comment No. 5 states: that aid specifically to children. The Committee “Article 4 emphasizes that implementation expects States Parties to be able to identify of the Convention is a cooperative exercise on a yearly basis the amount and proportion for the States of the world. This article and of international support earmarked for the others in the Convention highlight the need implementation of children’s rights. for international cooperation. The Charter of “The Committee endorses the aims of the the United Nations (arts. 55 and 56) identifies 20/20 initiative, to achieve universal access the overall purposes of international economic to basic social services of good quality on a and social cooperation, and members pledge sustainable basis, as a shared responsibility of themselves under the Charter ‘to take joint developing and donor States. The Committee and separate action in cooperation with the notes that international meetings held to Organization’ to achieve these purposes. In the review progress have concluded that many United Nations Millennium Declaration and at States are going to have difficulty meeting IMPLEMENTATION OF RIGHTS IN THE CONVENTION 69

98 A World Fit for Children Mobilizing resources – extract from “The primary responsibility for the implementation of the Plan of Action and for ensuring an enabling environment for securing the well-being of children, in which the rights of each and every child are promoted and respected, rests with each individual country, recognizing that new and additional resources, both national and international, are required for this purpose. “Investments in children are extraordinarily productive if they are sustained over the medium to long term. Investing in children and respecting their rights lays the foundation for a just society, a strong economy, and a world free of poverty. “Implementation of the present Plan of Action will require the allocation of significant additional human, financial, and material resources, nationally and internationally, within the framework of i c t l an enabling international environment and enhanced international cooperation, including North- r e a South and South-South cooperation, to contribute to economic and social development. “Accordingly, we resolve to pursue, among others, the following global targets and actions for mobilizing resources for children: (a) Express our appreciation to the developed countries that have agreed to and have reached the target of 0.7 per cent of their gross national product (GNP) for overall official development assistance (ODA) and urge the developed countries that have not done so to strive to meet the yet to be attained internationally agreed target of 0.7 per cent of their gross national product for overall ODA as soon as possible. We take upon ourselves not to spare any efforts to reverse the declining trends of ODA and to meet expeditiously the targets of 0.15 per cent to 0.20 per cent of GNP as ODA to least developed countries, as agreed, taking into account the urgency and gravity of the special needs of children; (b) Without further delay, implement the enhanced heavily indebted poor countries initiative (HIPC) and agree to cancel all bilateral official debts of heavily indebted poor countries as soon as possible, in return for their making demonstrable commitments to poverty eradication, and urge the use of debt service savings to finance poverty eradication programmes, in partic- ular those related to children; (c) Call for speedy and concerted action to address effectively the debt problems of least devel- oped countries, low-income developing countries and middle-income developing countries in a comprehensive, equitable, development-oriented and durable way through various national and international measures designed to make their debt sustainable in the long term and thereby to improve their capacity to deal with issues relating to children, including, as appropriate, exist- ing orderly mechanisms for debt reduction such as debt swaps for projects aimed at meeting the needs of children; (d) Increase and improve access of products and services of developing countries to international markets through, inter alia , the negotiated reduction of tariff barriers and the elimination of non-tariff barriers, which unjustifiably hinder trade of developing countries, according to the multilateral trading system; (e) Believing that increased trade is essential for the growth and development of the least devel- oped countries, aim at improving preferential market access for those countries by working towards the objective of duty-free and quota-free market access for all products of the least developed countries in the markets of developed countries; (f) Mobilize new and substantial additional resources for social development, both at national and international level, to reduce disparities within and among countries, and ensure the effec- tive and efficient use of existing resources. Further, ensure to the greatest possible extent, that social expenditures that benefit children are protected and prioritized during both short-term and long-term economic and financial crises; (g) Explore new ways of generating public and private financial resources, inter alia , through the reduction of excessive military expenditures and the arms trade and investment in arms production and acquisition, including global military expenditures, taking into consideration national security requirements; Implementation Handbook for the Convention on the Rights of the Child 70

99 (h) Encourage donor and recipient countries, based on mutual agreement and commitment, to fully implement the 20/20 Initiative, in line with the Oslo and Hanoi Consensus documents, to ensure universal access to basic social services.” (Extract from “A World Fit for Children”, outcome document of the 2002 United Nations General Assembly’s special session on children, Report of the Ad Hoc Committee of the Whole of the twenty- seventh special session of the General Assembly, 2002, A/S-27/19/Rev.1, paras. 49 to 52) fundamental economic and social rights “They should seek to ensure within their unless additional resources are allocated and influence that international cooperation is efficiency in resource allocation is increased. targeted at supporting States to fulfil their i c t l r e a The Committee takes note of and encourages obligations under the Convention. Similarly efforts being made to reduce poverty in the the World Bank Group, the International most heavily indebted countries through the Monetary Fund and World Trade Organization Poverty Reduction Strategy Paper (PRSP). As should ensure that their activities related the central, country-led strategy for achieving to international cooperation and economic the millennium development goals, PRSPs must development give primary consideration to include a strong focus on children’s rights. the best interests of children and promote The Committee urges Governments, donors full implementation of the Convention.” and civil society to ensure that children are a (Committee on the Rights of the Child, General prominent priority in the development of PRSPs Comment No. 5, 2003, CRC/GC/2003/5, paras. 60 and sectorwide approaches to development to 64) (SWAps). Both PRSPs and SWAps should reflect The Committee urges States to meet United children’s rights principles, with a holistic, Nations targets for international assistance. For child-centred approach recognizing children example: as holders of rights and the incorporation of development goals and objectives which are “The Committee notes the approval of relevant to children.” (Committee on the Rights of the Programme of Action 2015 for Poverty the Child, General Comment No. 5, 2003, Reduction and the many other activities in CRC/GC/2003/5, paras. 60 to 62) the area of international cooperation and assistance, but remains concerned that the The Committee encourages States to provide State Party devotes only about 0.27 per cent and to use, as appropriate, technical assistance, of its gross national income to the official from among others UNICEF, the Office of the development assistance, and that the foreseen High Commissioner for Human Rights (OHCHR) increase to 0.33 per cent in 2006 is very slow. and other United Nations and United Nations- “In light of its previous recommendations related agencies. States Parties are encouraged (para. 25), the Committee encourages the State Party to implement the United Nations to identify their interest in technical assistance target of allocating 0.7 per cent of gross in their reports under the Convention. All United domestic product to overseas development Nations and United Nations-related organizations assistance as soon as possible...” (Germany involved in promoting international cooperation CRC/C/15/Add.226, paras. 21 and 22) and technical assistance should be guided by the Convention and should mainstream children’s rights throughout their activities: Reporting guidelines: see Guidelines for Periodic Reports (Revised 2005) (CRC/C/58/Rev.1), Appendix 3, page 699. IMPLEMENTATION OF RIGHTS IN THE CONVENTION 71

100 i c t l r e a Implementation Checklist General measures of implementation • Article 4 sets out States Parties’ overall obligations to implement all the rights in the Convention. consider what measures are appropriate ■ ■ Has there been a comprehensive review to for implementation of the Convention? ■ ■ Has there been a comprehensive review of all legislation, including any customary, regional or local law in the State, to ensure compatibility with the Convention? the Committee reflected in legislation: Are the general principles identified by ■ ■ Article 2: all rights to be recognized for each child in jurisdiction without discrimination on any ground? Article 3(1): the best interests of the child to be a primary consideration in all actions ■ ■ concerning children? ■ Article 6: right to life and maximum possible survival and development? ■ Article 12: respect for the child’s views in all matters affecting the child; opportunity ■ ■ to be heard in any judicial or administrative proceedings affecting the child? ■ ■ Is it possible to invoke these principles before the courts? ■ ■ Is the Convention incorporated or self-executing in national law? Does the Convention take precedence over domestic law when there is a conflict? ■ ■ ■ ■ Does the Constitution reflect the principles of the Convention, with particular reference to children? ■ ■ Has a consolidated law on the rights of the child been developed? Do children and their representatives have effective remedies for breaches of their ■ ■ rights in the Convention? Is there a comprehensive national strategy for implementation of the Convention? ■ ■ ■ Where there is a National Plan or Programme of Action for children, has ■ implementation of all aspects of the Convention been integrated into it? Has one (or more) permanent mechanism(s) of government been established ■ to ensure appropriate coordination of policy? ■ ■ between provinces/regions, etc.? ■ ■ between central government departments? ■ between central and local government? ■ ■ ■ ■ between economic and social policies? ■ to ensure effective evaluation of policy relating to children? ■ ■ to ensure effective monitoring of implementation? ■ ■ Are such mechanisms directly linked to the institutions of government that ■ determine overall policy and budgets in the State? Implementation Handbook for the Convention on the Rights of the Child 72

101 i c t l r e a see page XIX How to use the checklist, ■ Is the principle that the best interests of the child should be a primary consideration ■ formally adopted at all levels of policy-making and budgeting? dget devoted to social expenditure Is the proportion of the overall bu adequate nationally? ■ ■ regionally/at provincial level? ■ ■ ■ ■ locally? Is the proportion of social expenditure devoted to children adequate nationally? ■ ■ regionally/at provincial level? ■ ■ ■ locally? ■ Are permanent arrangements established for budgetary analysis at national and other levels of government to ascertain the proportion of overall budgets devoted to children? ■ ■ ■ ■ any disparities between regions, rural/urban, particular groups of children? the effects of structural readjustment, economic reforms and changes on all children? ■ ■ the most disadvantaged groups of children? ■ ■ the proportion and amount received/given in relation to international ■ ■ cooperation to promote the rights of the child, and allocated to different sectors? ■ ■ Do the arrangements for monitoring ensure a comprehensive, multidisciplinary assessment of the situation of all children in relation to implementation of the Convention? ■ ■ Is sufficient disaggregated data collected to enable evaluation of the implementation of the non-discrimination principle? ■ Are there arrangements to ensure a child impact analysis during policy formulation ■ and decision-making at all levels of government? ■ Is there a regular report to Parliament on implementation of the Convention? ■ ■ Are parliamentary mechanisms established to ensure appropriate scrutiny and ■ debate of matters relating to implementation? ■ Is civil society involved in the process of implementation at all levels, including in ■ particular appropriate non-governmental organizations (NGOs)? ■ ■ ■ ■ children themselves? Is there a permanent mechanism for consulting on matters relating to ■ ■ implementation with appropriate NGOs and with children themselves? IMPLEMENTATION OF RIGHTS IN THE CONVENTION 73

102 i c t l r e a How to use the checklist, see page XIX Has an independent human rights institution been established to promote the ■ ■ rights of children – a children’s ombudsman, commissioner or focal point within a human rights commission? Is its independence from government assured? ■ ■ ative powers, e.g. of investigation? Does it have appropriate legisl ■ ■ Does it comply with the Paris Principles on the status of national human rights ■ ■ institutions? Reminder : The Convention is indivisible and its articles are interdependent. Article 4 requires States Parties to take all appropriate legislative, administrative and other measures to implement the rights in the Convention. Thus it relates to all other articles. Implementation Handbook for the Convention on the Rights of the Child 74

103 c l i t e r Parental a guidance and the child’s evolving capacities ... Text of Article 5 States Parties shall respect the responsibilities, rights and duties of parents or, where applic- able, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. rticle 5, together with article 18 in par- In no sense is the Convention “anti-family”, nor ticular, provides a framework for the does it pit children against their parents. On the relationship between the child, his or contrary, the Preamble upholds the family as “the A her parents and family, and the State. fundamental group of society and the natural The article provides the Convention on the Rights environment for the growth and well-being of all Summary of the Child with a f lexible definition of “family” its members and particularly children”. Several and introduces to the Convention two vital con- articles emphasize the primary responsibility of cepts: parental “responsibilities” and the “evolv- parents and place strict limits on state interven- ing capacities” of the child. The article also tion and any separation of children from their signals clearly that the Convention regards the parents (articles 3(2), 7, 9, 10, 18, 27); one of the child as the active subject of rights, emphasiz- aims for education is the development of respect ing the exercise “by the child” of his or her rights. for the child’s parents (article 29).” ■ The Committee has expanded on its interpreta- tion of the article in General Comments. PARENTAL GUIDANCE AND THE CHILD’S EVOLVING CAPACITIES 75

104 for the full and harmonious development of his States Parties “... shall respect or her personality, should grow up in a family the responsibilities, rights environment, in an atmosphere of happiness, love and duties...” and understanding”. Article 5 introduces to the Convention the con- Article 5 acknowledges the extended family, cept of parents’ and others’ “responsibilities” for referring not only to parents and others legally their children, linking them to parental rights and responsible but also to the extended family duties, which are needed to fulfil responsibili- or community where they are recognized by ties. Article 18 expands on the concept of parental local custom. In its General Comment No. 7 on responsibilities (see page 231). In it, States Parties “Implementing child rights in early childhood”, are required to “use their best endeavours” to the Committee comments: ensure recognition of the principle that both par- “Under normal circumstances, a young child’s ents have common responsibilities for the upbring- i c parents play a crucial role in the achievement t l r e a ing and development of the child: “Parents or, as of their rights, along with other members the case may be, legal guardians, have the primary of family, extended family or community, responsibility for the upbringing and development including legal guardians, as appropriate. This is fully recognized within the Convention of the child. The best interests of the child will be (especially article 5)... The Committee their basic concern.” Parental responsibilities are recognizes that ‘family’ ... refers to a variety also mentioned in article 27(2) (see page 395). of arrangements that can provide for young Beyond this, the Convention does not specifically children’s care, nurturance and development, including the nuclear family, the extended define “parental responsibilities”. But as is the family, and other traditional and modern case with the definition of the best interests of the community-based arrangements, provided child, the content of the whole Convention is rel- these are consistent with children’s rights and evant. Parents have responsibilities, in the terms (Committee on the Rights of the best interests.” of article 5, to appropriately support “the exercise Child, General Comment No. 7, 2005, CRC/C/GC/7/ by the child of the rights recognized in the pres- Rev.1, para. 15) ent Convention”. The Convention challenges con- The Committee also recognizes that social trends cepts that parents have absolute rights over their have led to a range of family patterns: children, which the Committee has noted are tra- “... The Committee notes that in practice ditional in many societies but already changing family patterns are variable and changing in to some degree in most. The rights and the duties many regions, as is the availability of informal that parents have derive from their responsibility networks of support for parents, with an to act in the best interests of the child. The impli- overall trend towards greater diversity in cation is that the concept of parental responsibil- family size, parental roles and arrangements ities should be reflected and defined in the law, for bringing up children. These trends are using the framework of the Convention. especially significant for young children, whose physical, personal and psychological “... of parents or, where development is best provided for within a small number of consistent, caring applicable, the members of the relationships. Typically, these relationships extended family or community are with some combination of mother, father, as provided for by local siblings, grandparents and other members of custom, legal guardians or the extended family, along with professional other persons legally responsible caregivers specialized in childcare and education. The Committee acknowledges for the child, ...” that each of these relationships can make a distinctive contribution to the fulfilment The broad definition of family in the Convention of children’s rights under the Convention on the Rights of the Child ref lects the wide vari- and that a range of family patterns may be ety of kinship and community arrangements consistent with promoting children’s well- within which children are brought up around the (CRC/C/GC/7, para. 19) being...” world. The importance of the family is empha- sized in the Preamble to the Convention: “... the The International Covenant on Civil and Political family, as the fundamental group of society and Rights upholds, in article 23, the family as “the the natural environment for the growth and well- natural and fundamental group unit of society... being of all its members and particularly children, entitled to protection by society and the State” should be afforded the necessary protection and and sets out, in article 24, the child’s right to “such assistance so that it can fully assume its responsi- measures of protection as are required by his sta- bilities within the community”, and “... the child, tus as a minor, on the part of his family, society Implementation Handbook for the Convention on the Rights of the Child 76

105 particular issues. This is one of the Convention’s and the State”. In two General Comments in 1989 and 1990, the Human Rights Committee empha- key concepts – an acknowledgement that children’s sizes the f lexible definition of the family, which “is development towards independent adulthood must interpreted broadly to include all persons compos- be respected and promoted throughout childhood. ing it in the society of the State Party concerned” It is linked to the requirement of article 12 that the (Human Rights Committee, General Comment No. views of children should be given “due weight in 17, 1989, HRI/GEN/1/Rev.8, para. 6, p. 184). accordance with the age and maturity of the child”. The concept is repeated in article 14: parents And in General Comment No. 19 of the Human and legal guardians may provide direction to the Rights Committee: “The Committee notes that child, in relation to the child’s right to freedom of the concept of the family may differ in some thought, conscience and religion, in a manner con- respects from State to State, and even from region sistent with his or her evolving capacities. to region within a State, and that it is therefore not possible to give the concept a standard defi- i c The wording emphasizes the child as the subject t l r e a nition. However, the Committee emphasizes that, of the rights recognized in the Convention, refer- when a group of persons is regarded as a fam- ring to the exercise “by the child” of these rights. ily under the legislation and practice of a State, The role of parents in relation to the capacities and it must be given the protection referred to in art- rights of babies and younger children is explained icle 23. Consequently, States Parties should report in the Committee’s General Comment No. 7 on on how the concept and the scope of the family “Implementing child rights in early childhood”: is construed or defined in their own society and “The responsibility vested in parents and legal system. Where diverse concepts of the fam- other primary caregivers is linked to the ily, ‘nuclear’ and ‘extended’, exist within a State, requirement that they act in children’s best this should be indicated with an explanation of interests. Article 5 states that parents’ role is to offer appropriate direction and guidance the degree of protection afforded to each. In view in ‘the exercise by the child of the rights in of the existence of various forms of family, such the ... Convention’. This applies equally to as unmarried couples and their children or single younger as to older children. Babies and parents and their children, States Parties should infants are entirely dependent on others, also indicate whether and to what extent such but they are not passive recipients of care, types of family and their members are recognized direction and guidance. They are active social and protected by domestic law and practice.” agents, who seek protection, nurturance (Human Rights Committee, General Comment and understanding from parents or other No. 19, 1990, HRI/GEN/1/Rev.8, para. 2, p. 188) caregivers, which they require for their survival, growth and well-being. Newborn The Committee on the Rights of the Child has babies are able to recognize their parents noted increases in numbers of child-headed and (or other caregivers) very soon after birth, grandparent-headed households or families. It has and they engage actively in non-verbal suggested that polygamy should be investigated communication. Under normal circumstances, for any negative impact on children (see article young children form strong mutual 18, page 232). A General Recommendation of the attachments with their parents or primary Committee on the Elimination of Discrimination caregivers. These relationships offer children physical and emotional security, as well as against Women in 1994 proposes “prohibi- consistent care and attention. Through these tion of bigamy and polygamy and the protec- relationships children construct a personal tion of the rights of children” (Committee on the identity and acquire culturally valued skills, Elimination of Discrimination against Women, knowledge and behaviours. In these ways, General Recommendation No. 21, 1994, HRI/ parents (and other caregivers) are normally the GEN/1/Rev.8, para. 39, p. 315). major conduit through which young children are able to realize their rights.” (Committee on “... to provide, in a manner the Rights of the Child, General Comment No. 7, consistent with the evolving 2005, CRC/C/GC/7/Rev.1, para. 16) capacities of the child, appro- In the General Comment, the Committee refers priate direction and guidance to the concept of “evolving capacities” as an in the exercise by the child of “enabling principle”: the rights recognized in the “Article 5 draws on the concept of ‘evolving present Convention” capacities’ to refer to processes of maturation and learning whereby children progressively Using the concept of “evolving capacities” has acquire knowledge, competencies and avoided the need for the Convention to set arbi- understanding, including acquiring trary age limits or definitions of maturity tied to understanding about their rights and about PARENTAL GUIDANCE AND THE CHILD’S EVOLVING CAPACITIES 77

106 family environment as active rights holders how they can best be realized. Respecting young children’s evolving capacities is crucial who have the capacity to become full and for the realization of their rights and especially responsible citizens, given the proper guidance significant during early childhood, because and direction.” (Committee on the Rights of the of the rapid transformations in children’s Child, General Comment No. 4, 2003, physical, cognitive, social and emotional CRC/GC/2003/4, paras. 1 and 7) functioning, from earliest infancy to the When it ratified the Convention on the Rights beginnings of schooling. Article 5 contains the of the Child, the Holy See made a reservation principle that parents (and others) have the “... That it interprets the articles of the Convention responsibility to continually adjust the levels of support and guidance they offer to a child. in a way which safeguards the primary and These adjustments take account of a child’s inalienable rights of parents, in particular in so interests and wishes as well as the child’s far as these rights concern education (arts. 13 and capacities for autonomous decision-making 28), religion (art. 14), association with others (art. i c and comprehension of his or her best interests. t l r e a 15) and privacy (art. 16)” (CRC/C/2/Rev.8, p. 23). While a young child generally requires more guidance than an older child, it is important In its Concluding Observations, the Committee to take account of individual variations in expressed concern about the reservation, the capacities of children of the same age “... in particular with respect to the full and of their ways of reacting to situations. recognition of the child as a subject of rights”. Evolving capacities should be seen as a positive and enabling process, not an excuse for The Committee went on to recommend authoritarian practices that restrict children’s “... that the position of the Holy See with autonomy and self-expression and which regard to the relationship between articles 5 have traditionally been justified by pointing and 12 of the Convention be clarified. In this to children’s relative immaturity and their respect, it wishes to recall its view that the need for socialization. Parents (and others) rights and prerogatives of the parents may not should be encouraged to offer ‘direction and undermine the rights of the child as recognized guidance’ in a child-centred way, through by the Convention, especially the right of the dialogue and example, in ways that enhance child to express his or her own views and that young children’s capacities to exercise their (Holy his or her views be given due weight.” rights, including their right to participation See CRC/C/15/Add.46, paras. 7 and 13) (art. 12) and their right to freedom of thought, conscience and religion (art. 14).” (Committee Some other reservations and declarations have on the Rights of the Child, General Comment No. 7, underlined parental authority. For example, the 2005, CRC/C/GC/7Rev.1, para. 17) Republic of Kiribati stated that it “considers that a child’s rights as defined in the Convention, in par- The Committee also addresses the concept of ticular the rights defined in articles 12 to 16, shall evolving capacities and the issue of appropriate be exercised with respect for parental authority, in g uidance i n the exercise of r ights by older child ren accordance with the I-Kiribati customs and tradi- in its General Comment No. 4 on “Adolescent tions regarding the place of the child within and health and development in the context of the Convention on the Rights of the Child”: outside the family”. Similarly, a declaration from Poland stated that such rights “shall be exercised “The Convention on the Rights of the Child with respect for parental authority, in accordance defines a child as ‘every human being below the age of 18 years unless, under the law with Polish customs and traditions regarding the applicable, majority is attained earlier’ (art. 1). place of the child within and outside the family” Consequently, adolescents up to 18 years (CRC/C/2/Rev.8, pp. 27 and 35). old are holders of all the rights enshrined in the Convention; they are entitled to special The Committee has frequently expressed con- protection measures and, according to their cern where countries do not appear to have fully evolving capacities, they can progressively accepted the concept of the child as an active sub- exercise their rights (art. 5)... ject of rights, relating this to article 5 and also to “The Committee believes that parents or other articles 12 to 16. persons legally responsible for the child need to fulfil with care their right and responsibility The Committee has consistently stressed this to provide direction and guidance to their concept during its examination of States Parties’ adolescent children in the exercise by the reports. And it has strongly emphasized that latter of their rights. They have an obligation upholding the rights of the child within the fam- to take into account the adolescents’ views, in ily is not exercised at the expense of others’ accordance with their age and maturity, and to rights, in particular those of parents, but, on provide a safe and supportive environment in the contrary, strengthens the rights of the entire which the adolescent can develop. Adolescents need to be recognized by the members of their family. Thus, a Committee member said during Implementation Handbook for the Convention on the Rights of the Child 78

107 individual members, including children. Is this discussions with Burkina Faso: “... it was impor- only a dream or should it also be envisaged as tant, in striving to implement the Convention’s a precise and challenging task?” provisions, to promote the true spirit of that instrument to the effect that it was not a ques- The Committee affirmed that the Convention is tion of seeking ‘child power’ but of showing that “... the most appropriate framework in which upholding the rights of the child strengthened the to consider, and to ensure respect for, the rights of the entire family, and that, with regard fundamental rights of all family members, to parenthood, the emphasis should not be on in their individuality. Children’s rights will gain autonomy, but they will be especially authority but on responsibility.” Another mem- meaningful in the context of the rights of ber agreed that “it was wrong to interpret the parents and other members of the family to be assertion of children’s rights as in conflict with recognized, to be respected, to be promoted. those of parents; the rights of the child and of And this will be the only way to promote the the family went hand in hand” (Burkina Faso i c status of, and respect for, the family itself.” t l r e a CRC/C/SR.136, paras. 51 and 53). (Committee on the Rights of the Child, Report on the seventh session, September/October 1994, On the same subject, the Manual on Human CRC/C/34, paras. 183 et seq. ) 1997, states: “With the Rights Reporting, Convention, children’s rights are given auton- Article 5 makes clear that the nature of parental omy – not with the intention of affirming them in direction and guidance is not unlimited; it must opposition to the rights of adults or as an alterna- be “appropriate”, be consistent with the “evolv- tive to the rights of parents, but in order to bring ing capacities of the child” and with the remain- into the scene a new dimension: the consideration der of the Convention. Article 18 emphasizes that of the perspective of the child within the frame- the child’s best interests will be the parents’ “basic work of the essential value of the family. The concern”. Several States Parties made reservations child is therefore recognized in his or her funda- upholding parental authority (see above, page 78); mental dignity and individuality, with the right to and others, in their Initial Reports, have referred be different and diverge in his or her assessment to the “traditional” authority of parents. Manual of reality.” ( , p. 445) In its Initial Report, the United Kingdom suggests The Committee sees the family as crucial to the that article 19 of the Convention has to be read in conjunction with article 5 and that “appropri- realization of the child’s civil rights. In the out- ate direction and guidance” of the child “include line for its Day of General Discussion on “The the administration, by the parent, of reasonable role of the family in the promotion of the rights of and moderate physical chastisement to a child” the child”, it stated: (United Kingdom CRC/C/11/Add.1, para. 335). “The civil rights of the child begin within the In discussion with United Kingdom Government family... The family is an essential agent for representatives, a Committee member stated: “... creating awareness and preservation of human rights, and respect for human values, cultural there was no place for corporal punishment within identity and heritage, and other civilizations. the margin of discretion accorded in article 5 to There is a need to consider appropriate parents in the exercise of their responsibilities. ways of ensuring balance between parental Other countries had found it helpful to incorpo- authority and the realization of the rights of rate a provision to that effect in their civil law...” the child, including the right to freedom of (United Kingdom CRC/C/SR.205, para. 72) (Committee on the Rights of the expression.” Child, Report on the fifth session, January 1994, Similarly, a Committee member noted dur- CRC/C/24, Annex V, p. 63) ing discussion of Senegal’s Initial Report: “The Committee recognized the existence of tradi- At the end of the General Discussion, the tional attitudes and practices, but firmly believed Committee reached some preliminary conclu- that those that went against the interests of the sions: child should be abolished. The belief that to spare “Traditionally, the child has been seen as the rod was to spoil the child was one such atti- a dependent, invisible and passive family tude: it was preferable to provide guidance than member. Only recently has he or she become to inflict corporal punishment.” (Senegal CRC/C/ ‘seen’ and, furthermore, the movement is SR.248, para. 73) growing to give him or her the space to be heard and respected. Dialogue, negotiation, Thus, when reading article 5 in conjunction with participation have come to the forefront of article 19, the Committee is clear that paren- common action for children. tal “guidance” must not take the form of violent “The family becomes in turn the ideal or humiliating discipline, as the child must be framework for the first stage of the protected from “all forms of physical or mental democratic experience for each and all of its PARENTAL GUIDANCE AND THE CHILD’S EVOLVING CAPACITIES 79

108 The Committee has underlined that there must violence” while in the care of parents and others. The Committee reiterates this in its General be no discrimination – for example on grounds Comment No. 8 on “The right of the child to pro- of gender – in recognition of maturity in States’ tection from corporal punishment and other cruel legislation (see article 1, page 8). or degrading forms of punishment (articles 19, 28(2) Preparation for parenthood inter alia and 37, )” (see also article 19, page 262): As indicated above, the Committee has noted “Article 5 requires States to respect the that the traditional view of the child as a “depen- responsibilities, rights and duties of parents dent, invisible and passive” member of the fam- ‘to provide, in a manner consistent with the ily persists in some States. The Committee has evolving capacities of the child, appropriate highlighted the need to prepare parents for their direction and guidance in the exercise by the responsibilities. In its General Comment No. 7 on child of the rights recognized in the present Convention‘. Here again, interpretation of “Implementing child rights in early childhood”, ‘appropriate‘ direction and guidance must be i c t l r the Committee expands on the need for compre- e a consistent with the whole Convention and hensive policies and programmes to support par- leaves no room for justification of violent or ents (see in particular CRC/C/GC/7/Rev.1, paras. other cruel or degrading forms of discipline.” 20 to 24, and for further discussion, see article (Committee on the Rights of the Child, General 18, page 231). Comment No. 8, 2006, CRC/C/GC/8, para. 28) The Committee’s decision to issue this General The focus of article 5 on “evolving capacities” Comment reflects a growing recognition of the is not only about children’s growing autonomy importance of early child development within in relation to parents. It also relates to the child’s the family for the prevention of violence and process of development (articles 6, 27 and 29) and other forms of crime, both in childhood and later parents’ responsibility not to demand or expect life. This recognition provides further motiva- from the child anything that is inappropriate to tion for developing comprehensive support and the child’s developmental state. Article 5 is about education programmes for parenting and prepa- the child’s path to maturity, which must come ration for parenthood. For example, the United from increasing exercise of autonomy. In many Nations Guidelines for the Prevention of Juvenile countries, children acquire certain rights of self- Delinquency (the Riyadh Guidelines) proposes: determination well before the age of majority; they “Measures should be taken and programmes often gain full adult rights on marriage, which in developed to provide families with the opportu- some States is permitted at the age of 14 or 15 (the nity to learn about parental roles and obligations Committee strongly criticizes this, see article 1, as regards child development and child care, pro- page 8). In a few countries the concept of “evolv- moting positive parent-child relationships, sen- ing capacities” is reflected by a general provision sitizing parents to the problems of children and in legislation that once children acquire sufficient maturity or understanding, they may make deci- young persons and encouraging their involve- sions for themselves when there is no specific lim- ment in family and community-based activities” itation on doing so set down in the law. (para. 16). Reporting guidelines: see Guidelines for Periodic Reports (Revised 2005) (CRC/C/58/Rev.1), Appendix 3, page 699. Implementation Handbook for the Convention on the Rights of the Child 80

109 i c t l r e a Implementation Checklist • General measures of implementation Have appropriate general measures of implementation been taken in relation to article 5, including: identification and coordination of the responsible departments and agencies at all ■ ■ departments levels of government (article 5 will be particularly relevant to )? concerned with family law and family support ■ ■ identification of relevant non-governmental organizations/civil society partners? a comprehensive review to ensure that all legislation, policy and practice is ■ ■ compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation which includes where necessary the identification of goals and indicators of ■ ■ progress? which does not affect any provisions which are more conducive to the rights of ■ ■ the child? which recognizes other relevant international standards? ■ ■ ■ ■ which involves where necessary international cooperation? (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole.) ■ budgetary analysis and allocation of necessary resources? ■ ■ development of mechanisms for monitoring and evaluation? ■ making the implications of article 5 widely known to adults and children? ■ ■ development of appropriate training and awareness-raising (in relation to article 5, ■ ■ likely to include training of all those working with and for families, and education for parenting )? • Specific issues in implementing article 5 Does the definition of “family” for the purposes of the realization of the rights of ■ ■ the child correspond with the flexible definition of the Convention? ■ ■ Is there a detailed legal definition of parental responsibilities, duties and rights? Has such a definition been reviewed to ensure compatibility with the principles and ■ ■ provisions of the Convention? ■ Does legislation ensure that direction and guidance provided by parents to their ■ children is in conformity with the principles and provisions of the Convention? ■ ■ Are the evolving capacities of the child appropriately respected in the Constitution and in legislation? ■ ■ Is there a general principle that once a child has acquired “sufficient understanding” in relation to a particular decision on an important matter, he or she is entitled to make the decision for him/herself? PARENTAL GUIDANCE AND THE CHILD’S EVOLVING CAPACITIES 81

110 i c t l r e a How to use the checklist, see page XIX ■ Are information campaigns/education programmes on child development, the ■ evolving capacities of children, etc. available to parents, other caregivers and children, and to those who support them? ■ ■ Have these campaigns/programmes been evaluated? The Convention is indivisible and its articles interdependent. Article 5 Reminder : should not be considered in isolation. Its flexible definition of the family is relevant to interpretation of other articles. The article asserts the child as an active subject of rights with evolving capacities, relevant to implementation of all other rights, including in particular the child’s civil and political rights. Particular regard should be paid to: The general principles Article 2: all rights to be recognized for each child in the jurisdiction without discrimination on any ground Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 6: right to life and maximum possible survival and development Article 12: respect for the child’s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child Closely related articles Articles whose implementation is related to that of article 5 include: Article 1: definition of the child in legislation and practice must take account of the child’s “evolving capacities” Article 18: parental responsibilities and state support for parenting Implementation Handbook for the Convention on the Rights of the Child 82

111 c l i t e r Child’s right a to life and maximum survival and development ... Text of Article 6 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. rticle 6 is one of the articles designated opment as an holistic concept, and many articles by the Committee on the Rights of the of the Convention specifically refer to the goal of Child as a general principle, guaran- development. Other articles emphasize the key role teeing the child the fundamental right A of parents and the family for child development and to life, upheld as a universal human rights prin- the State’s obligation to support them. Protection Summary ciple in other instruments, and to survival and from violence and exploitation is also vital to max- development to the maximum extent possible. imum survival and development. As with the other articles identified as including general principles The concept of “survival and development” to (articles 2, 3, and 12), the Committee on the Rights the maximum extent possible is crucial to the of the Child has proposed that article 6 should be implementation of the whole Convention. The Committee on the Rights of the Child sees devel- reflected in domestic legislation. ■ CHILD’S RIGHT TO LIFE AND MAXIMUM SURVIVAL AND DEVELOPMENT 83

112 “Article 6 refers to the child’s inherent The inherent right to life right to life and States Parties’ obligation of the child to ensure, to the maximum extent possible, the survival and development of the child. The right to life is upheld as a universal human States Parties are urged to take all possible rights principle in article 3 of the Universal measures to improve perinatal care for Declaration of Human Rights: “Everyone has mothers and babies, reduce infant and child the right to life, liberty and security of person”. mortality, and create conditions that promote Article 6 of the International Covenant on Civil the well-being of all young children during and Political Rights upholds the same principle: this critical phase of their lives. Malnutrition “Every human being has the inherent right to life. and preventable diseases continue to be This right shall be protected by law. No one shall major obstacles to realizing rights in early childhood. Ensuring survival and physical be arbitrarily deprived of his life” (paragraph 1). health are priorities, but States Parties are The other paragraphs of the article in the Covenant i c t l reminded that article 6 encompasses all r e place limitations on the use of the death penalty a aspects of development, and that a young in those countries that have not abolished it (see child’s health and psychosocial well-being are below, page 88). The Human Rights Committee, in many respects interdependent. Both may in a General Comment in 1982 on the right to life be put at risk by adverse living conditions, notes that the right has too often been narrowly neglect, insensitive or abusive treatment interpreted: “The expression ‘inherent right to life’ and restricted opportunities for realizing can not properly be understood in a rest rictive man- human potential. Young children growing up ner, and the protection of this right requires that in especially difficult circumstances require States adopt positive measures. In this connection, particular attention... The Committee reminds the Committee considers that it would be desirable States Parties (and others concerned) that for States Parties to take all possible measures to the right to survival and development can only be implemented in a holistic manner, reduce infant mortality and to increase life expec- through the enforcement of all the other tancy, especially in adopting measures to elimi- provisions of the Convention, including rights nate malnutrition and epidemics.” (Human Rights to health, adequate nutrition, social security, Committee, General Comment No. 6, 1982, HRI/ an adequate standard of living, a healthy and GEN/1/Rev.8, para. 5, p. 167) safe environment, education and play (arts. 24, Manual on Human Rights According to the 27, 28, 29 and 31), as well as through respect 1997, measures taken by States to Reporting, for the responsibilities of parents and the provision of assistance and quality services implement article 6 of the Convention on the (arts. 5 and 18). From an early age, children Rights of the Child may be “of a positive nature should themselves be included in activities and thus designed to protect life, including by promoting good nutrition and a healthy and increasing life expectancy, diminishing infant and disease-preventing lifestyle.” (Committee on the child mortality, combating diseases and rehabili- Rights of the Child, General Comment No. 7, 2005, tating health, providing adequate nutritious foods CRC/C/GC/7/Rev.1, para. 10) and clean drinking water. And they may further aim at preventing deprivation of life, namely by The particular threat to children’s right to life and prohibiting and preventing death penalty, extra- development posed by HIV/AIDS is addressed legal, arbitrary or summary executions or any sit- in the Committee’s General Comment on uation of enforced disappearance. States Parties “HIV/AIDS and the rights of the child”: should therefore refrain from any action that may “Children have the right not to have their lives intentionally take life away, as well as take steps arbitrarily taken, as well as to benefit from to safeguard life.” ( Manual , p. 424) economic and social policies that will allow them to survive into adulthood and develop Article 24 of the Convention on the Rights of the in the broadest sense of the word. State Child expands on the child’s right to health and obligation to realize the right to life, survival health services, and specifically requires “appro- and development also highlights the need to priate measures ... to diminish infant and child give careful attention to sexuality as well as mortality” (article 24(2)(a), see page 355). The to the behaviours and lifestyles of children, Committee has commended States for reducing even if they do not conform with what society mortality rates and has expressed concern when- determines to be acceptable under prevailing cultural norms for a particular age group. In ever rates have risen and at situations in which this regard, the female child is often subject rates vary in a discriminatory way (for further to harmful traditional practices, such as discussion, see article 24, page 356). early and/or forced marriage, which violate In its General Comment No. 7 on “Implementing her rights and make her more vulnerable child rights in early childhood”, the Committee to HIV infection, including because such practices often interrupt access to education highlights these issues: Implementation Handbook for the Convention on the Rights of the Child 84

113 and information. Effective prevention The Committee on the Elimination of programmes are only those that acknowledge Discrimination against Women, in a General the realities of the lives of adolescents, while Recommendation on women and health, states addressing sexuality by ensuring equal access “... When possible, legislation criminalizing to appropriate information, life skills, and to abortion should be amended, in order to with- preventive measures.” (Committee on the Rights draw punitive measures imposed on women of the Child, General Comment No. 3, 2003, who undergo abortion.” (Committee on the CRC/GC/2003/3, para. 11) Elimination of Discrimination against Women, The child’s right to life: General Recommendation No. 24, 1999, HRI/ abortion and euthanasia GEN/1/Rev.8, para. 31(c), p. 336) As noted under article 1 (page 2), the Preamble to Contentious ethical issues arise in relation to the Convention on the Rights of the Child recalls the right to life, which the Committee has not as the provision in the United Nations Declaration of yet tackled comprehensively – for example the i c t l the Rights of the Child that “the child, by reason r e a responsibility to sustain children with severe dis- of his physical and mental immaturity, needs spe- abilities at birth and to sustain the life of very cial safeguards and care, including appropriate premature babies. legal protection, before as well as after birth.” The Working Group drafting the Convention agreed When it examined the Netherlands’ Second that a statement should be placed in the travaux Report, it commented: préparatoires to the effect that “In adopting this “The Committee notes the information that preambular paragraph, the Working Group does euthanasia remains a crime under article 293 not intend to prejudice the interpretation of art- of the Penal Code, but which is not prosecuted icle 1 or any other provision of the Convention if committed by a medical doctor who meets by States Parties” (E/CN.4/1989/48, pp. 8 to 15; the criteria explicitly set out in article 293 (2) Detrick, p. 110). of the Penal Code and follows the procedures required by law and regulations. As this Article 1 deliberately leaves open the starting legislation is also applicable to children point of childhood, that is, whether it is concep- aged 12 years or older, requiring explicit tion, birth or sometime in between. Thus, the and repeated requests from the child, and Convention leaves individual States to decide for parental consent if the child is younger than themselves the conflicting rights and interests 16 years, the Committee is concerned about involved in issues such as abortion and family the monitoring of such requests because planning, and the Committee on the Rights of the controls are exercised after the request has Child has therefore suggested that reservations to been fulfilled and because some cases are not reported by doctors. The Committee is preserve state laws on abortion are unnecessary concerned about information that medical (for details of reservations and discussion, see personnel have terminated the life of newborn article 1, page 2). infants with severe abnormalities. The Committee has commented adversely on “With respect to the Human Rights high rates of abortion, on the use of abortion as a Committee’s recommendations in this regard (CCPR/CO/72/NET, para. 5), the Committee method of family planning and on selective abor- recommends that the State Party: tions by gender, and it has encouraged measures (a) Frequently evaluate, and if necessary to reduce the incidence of abortion. revise, the regulations and procedures in the The Committee has also expressed concern at Netherlands with respect to the termination “clandestine” abortions and the negative effects of life on request in order to ensure that of teenage pregnancies, including on the right children, including newborn infants with severe abnormalities, enjoy special protection to life of young mothers, and at infanticide; see and that the regulations and procedures are in below, page 87. conformity with article 6 of the Convention; It has questioned, from the perspective of chil- (b) Take all necessary measures to strengthen dren’s best interests, the illegality of abortions control of the practice of euthanasia and even in cases of rape or incest: prevent non-reporting, and to ensure that the mental and psychological status of the child and “... The Committee notes that abortion is illegal parents or guardians requesting termination except on medical grounds and expresses of life are taken into consideration when concern regarding the best interests of child determining whether to grant the request; victims of rape and/or incest in this regard... (c) Provide in its next periodic report “The Committee recommends that the additional information on the implementation State Party review its legislation concerning of laws and regulations on the termination of abortion, with a view to guaranteeing the best (Netherlands and Aruba life on request.” interests of child victims of rape and incest...” (Palau CRC/C/15/Add.149, paras. 46 and 47) CRC/C/15/Add.227, paras. 33 and 34) CHILD’S RIGHT TO LIFE AND MAXIMUM SURVIVAL AND DEVELOPMENT 85

114 The Human Rights Committee, in its Concluding reasoned decision to terminate life with the evolv- Observations referred to by the Committee on the ing and maturing capacities of minors. In view Rights of the Child, commented: “The Committee of the irreversibility of euthanasia and assisted discussed the issue of euthanasia and assisted sui- suicide, the Committee wishes to underline its cide. The Committee acknowledges that the new conviction that minors are in particular need of Act concerning review procedures on the ter- protection. mination of life on request and assisted suicide, “The Committee, having taken full note of the which will come into force on 1 January 2002, monitoring task of the review committee, is also is the result of extensive public debate address- concerned about the fact that it exercises only an ing a very complex legal and ethical issue. It fur- ex post control, not being able to prevent the ter- ther recognizes that the new law seeks to provide mination of life when the statutory conditions are legal certainty and clarity in a situation which has not fulfilled. evolved from case law and medical practice over i c t l r e a a number of years. The Committee is well aware “The State Party should re-examine its law on that the new Act does not as such decriminalize euthanasia and assisted suicide in the light of euthanasia and assisted suicide. However, where these observations. It must ensure that the pro- a State Party seeks to relax legal protection with cedures employed offer adequate safeguards respect to an act deliberately intended to put an against abuse or misuse, including undue influ- end to human life, the Committee believes that ex ante control mecha- ence by third parties. The the Covenant obliges it to apply the most rigorous nism should be strengthened. The application of scrutiny to determine whether the State Party’s the law to minors highlights the serious nature obligations to ensure the right to life are being of these concerns. The next report should pro- complied with (articles 2 and 6 of the Covenant). vide detailed information as to what criteria are applied to determine the existence of a ‘voluntary “The new Act contains, however, a number of and well-considered request’, ‘unbearable suf- conditions under which the physician is not pun- fering’ and ‘no other reasonable alternative’. It ishable when he or she terminates the life of a should further include precise information on the person, inter alia, at the “voluntary and well-con- number of cases to which the new Act has been sidered request” of the patient in a situation of applied and on the relevant reports of the review “unbearable suffering” offering “no prospect of committee. The State Party is asked to keep the improvement” and “no other reasonable solution”. law and its application under strict monitoring The Committee is concerned lest such a system and continuing observation. may fail to detect and prevent situations where undue pressure could lead to these criteria being “The Committee is gravely concerned at reports circumvented. The Committee is also concerned that new-born handicapped infants have had their that, with the passage of time, such a practice lives ended by medical personnel. may lead to routinization and insensitivity to the “The State Party should scrupulously investigate strict application of the requirements in a way not any such allegations of violations of the right to anticipated. The Committee learnt with unease life (article 6 of the Covenant), which fall outside that under the present legal system more than the law on euthanasia. The State Party should 2,000 cases of euthanasia and assisted suicide further inform the Committee on the number of (or a combination of both) were reported to the such cases and on the results of court proceedings review committee in the year 2000 and that the arising out of them.” (Netherlands, Human Rights review committee came to a negative assessment Committee Concluding Observations on Third only in three cases. The large numbers involved Periodic Report under the International Covenant raise doubts whether the present system is only on Civil and Political Rights, CCPR/CO/72/NET, being used in extreme cases in which all the sub- paras. 5 and 6) stantive conditions are scrupulously maintained. Article 10 of the new Convention on the Rights of “The Committee is seriously concerned that the Persons with Disabilities, adopted in December new law is also applicable to minors who have 2006, on “the right to life”, requires: “States reached the age of 12 years. The Committee notes Parties reaffirm that every human being has the that the law provides for the consent of parents inherent right to life and shall take all necessary or guardians of juveniles up to 16 years of age, measures to ensure its effective enjoyment by while for those between 16 and 18 the parents’ or persons with disabilities on an equal basis with guardian’s consent may be replaced by the will of others.” The Standard Rules on the Equalization the minor, provided that the minor can appropri- of Opportunities for Persons with Disabilities ately assess his or her interests in the matter. The requires that “States should ensure that persons Committee considers it difficult to reconcile a Implementation Handbook for the Convention on the Rights of the Child 86

115 with disabilities, particularly infants and chil- some areas of the world, men outnumber women by five in every 100.” Among the stated reasons dren, are provided with the same level of medical for the discrepancy is preference for a son which care within the same system as other members results in prenatal sex selection and female infan- of society” (rule 2.3). The Rules emphasizes that ticide. The Platform for Action proposes elimina- States have an obligation “to enable persons with tion of “all forms of discrimination against the disabilities to exercise their rights, including their girl child and the root causes of son preference, human, civil and political rights, on an equal which result in harmful and unethical practices basis with other citizens”, and to eliminate “any such as prenatal sex selection and female infan- discriminatory provisions against persons with ticide; this is often compounded by the increasing disabilities” (rule 15.1 and 15.2). use of technologies to determine foetal sex, result- Relevant to the principle of non-discrimination ing in abortion of female foetuses... Enact and and the right to life, some States have introduced enforce legislation protecting girls from all forms laws on abortion that permit termination of preg- i c t l r e a of violence, including female infanticide and pre- nancy at a later stage, sometimes up to full term natal sex selection...” (Fourth World Conference when tests have indicated that the foetus has a on Women, Beijing, China, September 1995, disabling impairment. Platform for Action, A/CONF.177/20/Rev.1, paras. 259, 277(c) and 283(d)). As medical technology advances, these issues may become more complex and pose a greater The Committee raised the issue during examina- number of ethical dilemmas and possible con- tion of India’s Initial Report and recommended f licts between the rights of the child and of his or “... that the State Party undertake studies to her mother. determine the socio-cultural factors which lead to practices such as female infanticide and In its General Comment No. 9 on “The rights of selective abortions, and to develop strategies children with disabilities”, the Committee asserts to address them...” (India CRC/C/15/Add.115, that the inherent right to life, survival and devel- para. 49) opment is a right that warrants particular attention where children with disabilities are concerned: It returned to this issue when it examined India’s “In many countries of the world children with Second Report: disabilities are subject to a variety of practices “The Committee notes the 2003 amendment that completely or partially compromise this to the Pre-conception and Pre-natal Diagnostic right. In addition to being more vulnerable Techniques (Prohibition of Sex Selection) Act, to infanticide, some cultures view a child with 1994, but remains deeply concerned that any form of disability as a bad omen that may the sex ratio in the age group 0-6 years has ‘tarnish the family pedigree’ and, accordingly, worsened over the past decade. a certain designated individual from the “In addition to its recommendations community systematically kills children with regarding gender discrimination (para. 30), disabilities. These crimes often go unpunished the Committee strongly recommends that the or perpetrators receive reduced sentences. State Party: States Parties are urged to undertake all the (a) Take all necessary steps to ensure the necessary measures required to put an end implementation of the Pre-conception and to these practices, including raising public Pre-natal Diagnostic Techniques (Prohibition of awareness, setting up appropriate legislation Sex Selection) Act, 1994; and enforcing laws that ensure appropriate (b) Further develop massive awareness punishment to all those who directly or campaigns, involving parents, communities, indirectly violate the right to life, survival and law enforcement officers, etc., and take development of children with disabilities.” the necessary measures, including imposing (Committee on the Rights of the Child, General sanctions to end the practice of selective Comment No. 9, 2006, CRC/C/GC/9, para. 31. See abortions and female infanticide; and also article 23, page 329.) (c) Undertake gender impact studies when planning programmes relating to economic Infanticide and social policies.” (India CRC/C/15/Add.228, In societies in which boys are valued economi- paras. 33 and 34) cally and socially above girls, unequal population In its discussions with representatives of China fol- figures by gender indicate that selective abortion lowing examination of the Initial Report, a mem- and/or infanticide may still be widespread. The ber of the Committee noted: “China had passed Platform for Action adopted at the Fourth World important legislation to address the problem of Conference on Women states: “... in many coun- gender discrimination, but the distorted gender tries available indicators show that the girl child ratio was alarming, and had to be seen against a is discriminated against from the earliest stages of life, through her childhood and into adulthood. In background of late abortions, the abandonment of CHILD’S RIGHT TO LIFE AND MAXIMUM SURVIVAL AND DEVELOPMENT 87

116 provides that fathers who kill their child, or infants and possible infanticide...” (China CRC/C/ their son’s child, are only required to pay one SR.299, para. 18) third of the blood money to the mother, and The Committee followed up the issue in its are subjected to a discretionary punishment, Concluding Observations: in the event that the mother makes a formal complaint. “While noting the measures taken to confront “The Committee recommends that the State the problems of discrimination on the grounds Party take the necessary measures, including of gender and disability, the Committee the amendment of the offending article of remains concerned at the persistence of practices leading to cases of selective the Penal Code, to ensure that there is no infanticide... discriminatory treatment for such crimes and “It is the Committee’s view that family that prompt and thorough investigations and planning policy must be designed to avoid prosecutions are carried out.” (Islamic Republic any threat to the life of children, particularly of Iran CR/C/15/Add.254, paras. 31 and 32) i c t l r girls. The Committee recommends in this e a In addition to girls, children with disabilities are regard that clear guidance be given to the par ticularly at risk of infanticide in some countries, population and the personnel involved in the as noted by the Committee in recommendations family-planning policy to ensure that the aims it promotes are in accordance with principles adopted following its Day of General Discussion and provisions of the Convention, including on “The rights of children with disabilities” in those of its article 24. The State Party is urged 1997 (see article 23, page 329). It told Togo: to take further action for the maintenance of “The Committee is deeply concerned about strong and comprehensive measures to combat reports of killing, in certain areas, of children the abandonment and infanticide of girls as born with disabilities, malformations, skin well as the trafficking, sale and kidnapping discoloration, as well as of children born or abduction of girls.” (China CRC/C/15/Add.56, with teeth, or from mothers who died during paras. 15 and 36) delivery. And following examination of China’s Second “While taking note of the discussions that took place with the authors of these killings, Report, the Committee noted with satisfaction the Committee urges the State Party urgently “... the legal measures enacted to prohibit to take all necessary measures to prevent selective abortions and infanticide in mainland the occurrence of such killings, to prosecute China. Nevertheless it remains concerned that those responsible for such crimes and to raise selective abortions and infanticide as well as awareness among the population at large of the abandonment of children, in particular (Togo the need to eradicate such practices.” girls and children with disabilities, continue CRC/C/15/Add.255, paras. 30 and 31) as negative consequences of existing family planning policies and societal attitudes. Early marriage “The Committee urges the State Party An early age of marriage – in particular for girls to continue and strengthen its efforts to – not only raises an issue of discrimination under guarantee the right to life, survival and article 2 but also threatens the rights of both development of all children in its territory. It recommends that the State Party strengthen the child-mother and the new child to life and its implementation of existing laws against to maximum survival and development under selective abortions and infanticide and take all article 6 (for discussion see article 1, page 8 and necessary measures to eliminate any negative article 2, page 22). consequences arising from family planning policies, including abandonment and non- The Platform for Action of the Fourth World registration of children and unbalanced sex Conference on Women, held in Beijing in 1995, ratios at birth.” (China CRC/C/CHN/CO/2, indicates that: “More than 15 million girls aged paras. 28 and 29) 15 to 19 give birth each year. Motherhood at a very young age entails complications dur- Many legal systems recognize the particular ing pregnancy and delivery and a risk of mater- crime of infanticide as a distinctly defined form nal death that is much greater than average. The of homicide with reduced penalties. The osten- children of young mothers have higher levels of sible intention is to provide a special defence for morbidity and mortality...” (Platform for Action, mothers suffering psychological trauma as a result A/CONF.177/20/Rev.1, para. 268) of the process of birth. But by denoting a special, and lesser, crime, such laws appear to discrimi- The death penalty nate against children as victims of homicide. Article 37(a) of the Convention on the Rights The Committee told the Islamic Republic of Iran: of the Child prohibits capital punishment “for offences committed by persons below eighteen “The Committee reiterates its serious concern at article 220 of the Penal Code, which years of age”. The Convention’s article 6 also Implementation Handbook for the Convention on the Rights of the Child 88

117 instances of extrajudicial killing, disappearance asserts this by recognizing every child’s right to and torture committed by the police and life and survival. paramilitary groups; at the multiple instances Article 6 of the International Covenant on Civil of ‘social cleansing’ of street children; and at and Political Rights says: “Sentence of death shall the persistent impunity of the perpetrators of not be imposed for crimes committed by persons such crimes. “The Committee reiterates its recommendation below eighteen years of age and shall not be car- [see CRC/C/15/Add.31] that the State Party ried out on pregnant women” (para. 5). A Second continue taking effective measures to protect Optional Protocol to the Covenant, adopted by children from the negative effects of the the United Nations General Assembly in 1989, armed conflict. The Committee urges the aims at the abolition of the death penalty. Under State Party to protect children against ‘social its article 1, no one within the jurisdiction of a cleansing’ and to ensure that judicial action be State Party to the Protocol may be executed. taken against the perpetrators of such crimes.” i c t l r e (Colombia CRC/C/15/Add.137, paras. 34 and 35) a The Committee on the Rights of the Child has raised the issue with a number of States Parties The Committee returned to the issue again when and emphasized that it is not enough that the death it examined Colombia’s Third Report: penalty is not applied to children. Its prohibition “The Committee is concerned over numerous regarding children must be confirmed in legis- instances of violence by the regular military lation (see article 37, page 554 for Committee’s forces whereby children have been killed, comments and further discussion). including cases where children have been falsely reported as killed in combat by the The Special Rapporteur of the Commission on army. Finally, the Committee notes with Human Rights on extrajudicial, summary or arbi- concern the unbroken pattern of impunity trary executions has reported regularly on restric- and the continuous tendency to refer serious tions on the use of the death penalty, including its violation of human rights to the military justice prohibition for juvenile offenders (see article 37, system. “The Committee urges the State Party to break page 554). the legacy of impunity and urgently conduct Armed conflict criminal investigations of human rights Article 38 of the Convention on the Rights of the violations in cases whereby children have lost Child (see page 573) requires special measures of their lives and ensure that the perpetrators are care and protection for children affected by armed brought to justice as a matter of the highest priority. Furthermore, the Committee requests conflict. Armed conflict poses a threat to the that the State Party respect its international right to life of many children and the Committee legal obligations in relation to fair trials and has frequently referred to this threat: ensure that all investigations are carried out “The Committee is deeply concerned at (Colombia independently and impartially.” the extensive violations of the right to life CRC/C/COL/CO/3, paras. 44 and 45) inter alia , armed conflict, of children by, deliberate killings by armed persons In the same context the Committee has expressed including members of the armed forces, concern at recruitment to armed forces: state regroupment policies, other forms of “In the light of the provisions and principles population displacement, poor health and of the Convention, especially the principles of sanitation facilities, severe malnutrition the best interests of the child (art. 3) and the and related illnesses, and as a result of the right to life, survival and development (art. 6), prevailing conflict between groups of the the Committee is deeply concerned at the early population. legal minimum age of voluntary enlistment “The Committee strongly urges the State Party into the armed forces. It recommends that to make every effort to reinforce protection the State Party raise the legal minimum age of the right to life, survival and development of voluntary enlistment into the armed forces of all children within the State Party through in the light of international human rights and policies, programmes and services that target (Iraq CRC/C/15/Add.94, humanitarian law.” and guarantee protection of this right. The para. 15) Committee further urges the State Party to seek as much international assistance as Also, the Committee has raised the threat to chil- (Burundi CRC/C/15/ possible in this regard.” dren’s survival and development caused by land- Add.133, paras. 30 and 31) mines. For example, it advised Mozambique to “... continue efforts to clear landmines and “In the light of article 6 and other related ensure the provision of physical rehabilitation provisions of the Convention, the Committee and other relevant support to victims.” is deeply concerned at the threat posed by the armed conflict to children’s lives, including (Mozambique CRC/C/15/Add.172, paras. 30 and 31) CHILD’S RIGHT TO LIFE AND MAXIMUM SURVIVAL AND DEVELOPMENT 89

118 “While the Committee notes that the The Human Rights Committee, in a General right to life, survival and development Comment in 1982, notes that “The right to life is integrated into domestic legislation, it enunciated in article 6 of the Covenant ... is the remains extremely concerned at the number supreme right from which no derogation is per- of children murdered, as reported by the mitted even in times of emergency.” The General Special Rapporteur on extrajudicial, summary Comment goes on to emphasize that averting the or arbitrary executions in Brazil in her 2004 danger of war and strengthening international report, which stated that the perpetrators of peace and security “would constitute the most those crimes are mainly military policemen or important condition and guarantee for the safe- former policemen (E/CN.4/2004/7/Add.3). guarding of the right to life”. (Human Rights “The Committee urges the State Party to take, as a matter of the highest priority, all Committee, General Comment No. 6, 1982, HRI/ necessary measures to prevent the killing of GEN/1/Rev.8, para. 2, p. 166) children, to fully investigate each of those And in another General Comment in 1984 it i c serious violations of children’s rights, to bring t l r e a emphasizes that “the designing, testing, manufac- the perpetrators to justice and to provide the ture, possession and deployment of nuclear weap- family of the victims with adequate support (Brazil CRC/C/15/Add.241, and compensation.” ons are among the greatest threats to the right to paras. 34 and 35) life which confront mankind today ... The produc- tion, testing, possession, deployment and use of Examining the United Kingdom’s Second Report, nuclear weapons should be prohibited and recog- the Committee expressed concern at the use of nized as crimes against humanity. The Committee plastic baton rounds (bullets) for crowd control, accordingly, in the interest of mankind, calls upon “... as it causes injuries to children and may all States, whether parties to the Covenant or not, jeopardize their lives. to take urgent steps, unilaterally and by agree- “Following the recommendations of the ment, to rid the world of this menace.” (Human Committee against Torture (A/54/44, Rights Committee, General Comment No. 14, para. 77(d)), the Committee urges the State 1984, HRI/GEN/1/Rev.8, paras. 4 to 7, p. 178) Party to abolish the use of plastic baton rounds as a means of riot control.” (United Kingdom Other life-threatening violence CRC/C/15/Add.188, paras. 27 and 28) to children The particular vulnerability of unaccompanied The obligation under article 6 of the Convention and separated children is raised by the Committee on the Rights of the Child to preserve the life of in its 2005 General Comment: children and to promote survival and maximum “The obligation of the State Party under development is expanded upon in many other article 6 includes protection from violence and articles (among them: article 19, protection from exploitation, to the maximum extent possible, all forms of violence; article 37, protection which would jeopardize a child’s right to life, from torture and cruel, inhuman or degrading survival and development. Separated and treatment or punishment; article 38, protection unaccompanied children are vulnerable to of children affected by armed conflict and the various risks that affect their life, survival and Optional Protocol on the involvement of children development such as trafficking for purposes in armed conflict). of sexual or other exploitation or involvement in criminal activities wh ich could result in harm The Committee on the Rights of the Child has to the child, or in extreme cases, in death. asserted the right to life, as well as other provi- Accordingly, article 6 necessitates vigilance sions, when expressing concern at violence to by States Parties in this regard, particularly children by security forces, police and others. For when organized crime may be involved...” example: (Committee on the Rights of the Child, General Comment No. 6, 2005, CRC/GC/2005/6, paras. 23 “... the Committee is deeply alarmed that the and 24) necessary safeguards against the excessive use of force by law enforcement officials or anyone “Disappearance” of children has caused concern else acting in this capacity are undermined by in a number of countries. In 2006, the General the provisions of section 73 of the Criminal Assembly adopted the International Convention Code. This may give rise to the violation of for the Protection of All Persons from Enforced children’s rights, including their right to life, Disappearance, which includes specific provi- and leads to impunity for the perpetrators of such violations. Therefore, it is the view sions on children who are subject to enforced dis- of the Committee that the above-mentioned appearance, or whose parents or guardians are provisions of the Nigerian Criminal Code are (see also articles 8 and 37). incompatible with the principles and provisions The right to life of children who live and/or work of the Convention.” (Nigeria CRC/C/15/Add.61, para. 24) on the streets may be particularly threatened: Implementation Handbook for the Convention on the Rights of the Child 90

119 “The Committee is concerned at the very high by the State Party, but is nonetheless very concerned at the widespread and increasing number of street children in the State Party, problem of so-called honour killings, affecting which according to official estimates were children both directly and, through their more than 10,000 in Bogotá in 2001, due to mothers, indirectly. The Committee is seriously socio-economic factors, the internal armed concerned that, despite the efforts of the State conflict as well as abuse and violence in the Party, the police are often reluctant to arrest family. The Committee is concerned over the the perpetrators and that the latter receive vulnerability of these children to youth gangs lenient or token punishment. but is particularly disturbed by threats posed “The Committee recommends that the State by social cleansing. Party take all necessary measures to ensure “The Committee recommends that the State that there is no discriminatory treatment Party: for crimes of honour and that they are (a) take effective measures to prevent social promptly, fairly and thoroughly investigated cleansing and other violence directed at street i c t l r and prosecuted. In addition, the Committee e children; a recommends that the State Party undertake a (b) carry out a comprehensive study to assess thorough review of the existing legislation and the scope, nature and causes of the presence strengthen awareness-raising campaigns in this of street children and youth gangs (pandillas) (Pakistan CRC/C/15/Add.217, paras. 34 regard.” in the country in order to develop a policy for and 35) prevention; (c) provide street children with recovery “Noting the statement by the delegation that and social reintegration services, taking the problem of crimes committed in the name into account their views in accordance with of honour do not exist in the State Party, the article 12, in particular by proactive outreach Committee is nevertheless concerned that the activities of the ICBF, taking due account provisions relating to ‘honour crimes’ remain of gender aspects, and provide them with in the Penal Code. It is deeply concerned at the adequate nutrition, housing, necessary statement by the delegation that in some cases healthcare and educational opportunities; such crimes are not punished at all. (d) develop a policy for family reunification “The Committee recommends that the State where possible and in the best interest of the Party: child; (a) Rapidly review its legislation with a view to (e) seek technical assistance from, inter alia , eliminating all provisions allowing sentences UNICEF.” (Colombia CRC/C/COL/CO/3, paras. 84 to be reduced if the crime in question is and 85) committed in the name of honour; (b) Amend the law in accordance with In its General Comment “Honour” killings. international standards and ensure prompt and No. 4 on “Adolescent health and development in thorough investigations and prosecutions; and the context of the Convention on the rights of the (c) Undertake awareness-raising activities child”, the Committee states: to make such practices socially and morally “In light of articles 3, 6, 12, 19 and 24 (3) of unacceptable.” (Lebanon CRC/C15/Add.169, the Convention, States Parties should take all paras. 28 and 29) effective measures to eliminate all acts and It returned to the issue when it examined activities which threaten the right to life of Lebanon’s Third Report: adolescents, including honour killings. The Committee strongly urges States Parties to “The Committee expresses its deep concern develop and implement awareness-raising at ‘the crimes committed in the name of campaigns, education programmes and honour’ affecting children both directly and, legislation aimed at changing prevailing through their mothers, indirectly. It notes with attitudes, and address gender roles and particular concern that, according to article stereotypes that contribute to harmful 562 of the Penal Code, a man who kills his traditional practices. Further, States Parties wife or other female relative may receive a should facilitate the establishment of reduced sentence if he demonstrates that he multidisciplinary information and advice committed the crime in response to a socially centres regarding the harmful aspects of some unacceptable sexual relationship conducted traditional practices, including early marriage by the victim. According to the information (Committee on and female genital mutilation.” provided by the State Party, some of these the Rights of the Child, General Comment No. 4, crimes have been committed by children. 2003, CRC/GC/2003/4, para. 24) “In the light of article 6 of the Convention, the Committee strongly recommends that the It has raised the issue with individual States. For State Party review as a matter of priority its example: domestic legislation, particularly article 562 “The Committee takes note of the recognition of the Penal Code, with a view to addressing ‘honour crimes’ in an effective way and to given to the problem of honour killings CHILD’S RIGHT TO LIFE AND MAXIMUM SURVIVAL AND DEVELOPMENT 91

120 practicable to put in place additional support eliminating all provisions allowing reductions and intervention programmes, be it in the of sentence if the crime is committed in field of mental health, education, employment the name of ‘honour’. It recommends that or another field, which could reduce this the State Party provide special training and tragic phenomenon. In this regard, the State resources to law-enforcement personnel with Party may want to call on Governments and a view to investigating and prosecuting such experts in other countries which also may have cases in an effective way. Furthermore, the experience in dealing with this problem.” State Party should raise awareness of this (New Zealand CRC/C/15/Add.71, para. 28) socially and morally unacceptable practice, involving also religious and community When it examined New Zealand’s Second Report, (Lebanon CRC/C/LBN/CO/3, paras. 32 leaders.” the Committee recommended that the State Party and 33) should Other harmful traditional practices. The “... take all necessary measures to address Convention requires States Parties to take i c t l r e youth suicide, especially among Maori youth, a action to abolish traditional practices prejudi- inter alia by strengthening the Youth Suicide cial to health of children (see article 24, page Prevention Programme...” (New Zealand 371). Traditional practices can also threaten the CRC/C/15/Add.216, para. 38) right to life and maximum survival and develop- Guidelines for Periodic Reports (Revised The ment under article 6. For example, the Committee 2005) specifically asks for disaggregated data raised “child sacrifice” with Uganda: on deaths of children caused by suicide (see “The Committee notes with deep concern that Appendix 3, page 702). child sacrifice takes place in the districts of Another common cause of Traffic accidents. Mukono and Kayunga, a serious violation of the most fundamental rights of the child. preventable death, affecting children in particu- “The Committee recommends that the State lar, is traffic accidents: Party: “The Committee is concerned at the high (a) Adopt appropriate legislative measures incidence of traffic accidents which claim the specifically prohibiting the practice of child lives of children. sacrifice at the local level; “The Committee recommends to the State (b) Continue to ensure that people who Party to strengthen and continue efforts to sacrifice children are reported to the raise awareness about and undertake public authorities and prosecuted; and information campaigns in relation to accident (c) Conduct awareness-raising campaigns prevention.” (Jordan CRC/C/15/Add.125, paras. 37 through local Governments on negative and 38) cultural practices, especially in the districts concerned.” (Uganda CRC/C/UGA/CO/2, paras. 33 “The Committee is concerned that ninety per and 34) cent of cases of people being run down by cars involve children, as indicated in the State It also expressed concern to the Central African Party’s report; Republic concerning the right to life of children “The Committee recommends that the State born in the breech position: Party: ... Develop and implement a policy for “The Committee recommends that the State the prevention of accidents involving children, Party review the impact of traditional attitudes including through information campaigns which may be harmful for children, such as targeting children, drivers, traffic police, attitudes with regard to children born in the teachers and parents.” (Mozambique CRC/C/15/ breech position, and that the right to life be Add.172, paras. 30 and 31) guaranteed...” (Central African Republic Investigation and registration of death CRC/C/15/Add.138, para. 33) In its original , Guidelines for Periodic Reports In its examination of reports by States Suicide. the Committee acknowledges the importance of Parties, the Committee has been concerned to adequate investigation of and reporting on the find high, and in some cases increasing, rates of deaths of all children and the causes of death, as suicide among children in some countries. well as the registration of deaths and their causes. Establishing an obligation and a procedure in leg- In several cases, the Committee has proposed islation for investigating all child deaths reduces studies on the causes and on the effective meth- the possibility of a cover-up of the real causes. ods of prevention. For example: In addition, it is acknowledged that because of “The Committee suggests that the State religious and social attitudes, suicide tends to be Party continue to give priority to studying underreported in many States. In States that have the possible causes of youth suicide and set up systematic procedures for investigating all the characteristics of those who appear to be most at risk and take steps as soon as child deaths, the experience tends to reveal many Implementation Handbook for the Convention on the Rights of the Child 92

121 more deaths in which some form of violence or adequate standard of living, education, and lei- sure and play (articles 24, 27, 28, 29 and 31) are neglect is implicated. Adequate investigation also relevant to ensuring the maximum development informs preventive strategies. The Committee of the child, and individual articles expand on the has urged States to establish statutory child death concept of “development”. For instance, under inquiries. (For example, see United Kingdom, article 27, States Parties recognize “the right of CRC/C/15/Add.188, para. 40.) every child to a standard of living adequate for The United Nations Rules for the Protection of the child’s physical, mental, spiritual, moral and Juveniles Deprived of their Liberty emphasizes social development”. Among the aims of educa- the importance of an independent inquiry into tion set out in article 29 is “... The development the cause of death of any juvenile in detention. of the child’s personality, talents and mental and In some States, there has been disturbing evi- physical abilities to their fullest potential...” and dence of violence to and between inmates, as preparation of the child for “responsible life in a i c well as high suicide rates. The Rules requires t l r e a free society.” that “Upon the death of a juvenile during the The Convention’s provisions protecting the child period of deprivation of liberty, the nearest rel- from violence and exploitation (in particular art- ative should have the right to inspect the death icles 19 and 32 to 39) are as vital to maximum certificate, see the body and determine the survival and development as are those on the pro- method of disposal of the body. Upon the death vision of services. Research now testifies to the of a juvenile in detention, there should be an potentially serious short- and long-term effects independent inquiry into the causes of death, on development of all forms of violence, includ- the report of which should be made accessible to ing sexual abuse and exploitation. the nearest relative. This inquiry should also be made when the death of a juvenile occurs within The Convention’s Preamble upholds the family six months from the date of his or her release as the “natural environment for the growth and from the detention facility and there is reason to well-being of all its members and particularly believe that the death is related to the period of children” and recognizes that the child, “for the detention.” (Rule 57) full and harmonious development of his or her personality, should grow up in a family environ- Article 9(4) of the Convention gives both parents ment, in an atmosphere of happiness, love and and child the right to be informed of the death of understanding”. Article 5 requires respect for the either, if this has resulted from “any action initi- “evolving capacities of the child” – a key concept ated by the State Party”, unless the provision of of overall development. Article 18 recognizes information would be detrimental to the well- that parents or legal guardians have the “primary being of the child (see article 9, page 131). responsibility” for the upbringing and develop- ment of the child and requires the State to pro- “... ensure to the maximum vide appropriate assistance and under article 20, extent possible the survival special protection for those deprived of a family and development of the child” environment. Article 25 requires periodic review In its second paragraph, article 6 of the of all children placed for care, protection or treat- Convention on the Rights of the Child goes ment – an important safeguard for their maxi- beyond the fundamental right to life to promote mum development. And in relation to children survival and development “to the maximum with disabilities, article 23 requires assistance to extent possible”. The concept of “development” be provided “in a manner conducive to the child’s is not just about the preparation of the child for achieving the fullest possible social integration adulthood. It is about providing optimal condi- and individual development, including his or her tions for childhood, for the child’s life now. cultural and spiritual development”. The Committee on the Rights of the Child has The Committee expects implementation of all emphasized that it sees child development as an other articles to be carried out with a view to holistic concept, embracing the whole Convention. achieving the maximum survival and develop- Many of the obligations of the Convention, ment of the child – a concept clearly integral to including in particular those related to health, the best interests of the child. Guidelines for Periodic Reports (Revised 2005) Reporting guidelines: see (CRC/C/58/Rev.1), Appendix 3, page 699. CHILD’S RIGHT TO LIFE AND MAXIMUM SURVIVAL AND DEVELOPMENT 93

122 i c t l r e a Implementation Checklist General measures of implementation • Have appropriate general measures of implementation been taken in relation to article 6, including: identification and coordination of the responsible departments and agencies at ■ ■ all levels of government (article 6 is relevant to all departments affecting children directly or indirectly )? ■ ■ identification of relevant non-governmental organizations/civil society partners? ■ a comprehensive review to ensure that all legislation, policy and practice is ■ compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation which includes where necessary the identification of goals and indicators of ■ ■ progress? ■ which does not affect any provisions which are more conducive to the rights of ■ the child? which recognizes other relevant international standards? ■ ■ ■ ■ which involves where necessary international cooperation? (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole). budgetary analysis and allocation of necessary resources? ■ ■ development of mechanisms for monitoring and evaluation? ■ ■ ■ making the implications of article 6 widely known to adults and children? ■ ■ ■ development of appropriate training and awareness-raising (in relation to article all those working with or for children and their families, and 6 likely to include )? education for parenting Specific issues in implementing article 6 • ■ ■ Is the general principle reflected in article 6 included in the State’s legislation? ■ ■ Have appropriate measures been introduced to reduce rates of infant and child mortality for all sectors of the population? ■ Have the rates of infant and child mortality consistently decreased over recent years, ■ including disaggregated rates? ■ Is the rate of abortion recorded and reported, including by age? ■ Where abortion is permitted, is its use appropriately regulated? ■ ■ ■ ■ Where abortion is permitted, has the State ensured there is no discriminatory variation in the term at which it is permitted, (e.g., dependent on identification of disability)? Is the State satisfied that there is no infanticide, in particular of ■ girls? ■ ■ children with disabilities? ■ Implementation Handbook for the Convention on the Rights of the Child 94

123 i c t l r e a see page XIX How to use the checklist, ■ ■ Is the rate of child pregnancies recorded and reported? Have appropriate measures been undertaken to reduce the number of child ■ ■ pregnancies? Has the State ensured there are no circumstances in which the death penalty may be ■ ■ applied to children? ■ ■ Are there appropriate arrangements to ensure the registration of, investigation of and reporting on the deaths of all children and their causes? ■ Are homicide rates analysed by the age of the victim in order to identify the ■ proportion of children of different age groups who are murdered? If the crime of infanticide exists in the legislation of the State has it been reviewed ■ ■ in the light of the Convention’s principles? ■ ■ Are suicides by children recorded and reported and the rates analyzed by age? Have appropriate measures been taken to reduce and prevent suicide by children? ■ ■ ■ ■ Have appropriate measures been taken to reduce and prevent accidents to children, including traffic accidents? Reminder : The Convention is indivisible and its articles interdependent. Article 6 – the child’s right to life and to maximum survival and development – has been identified by the Committee as a general principle of relevance to implementation of the whole Convention. Particular regard should be paid to: The general principles Article 2: all rights to be recognized for each child in the jurisdiction without discrimination on any ground Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 12: respect for the child’s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child Closely related articles Articles whose implementation is related to that of article 6 include: Article 37(a): prohibition of capital punishment Articles particularly related to the child’s right to maximum development include articles 18, 24, 27, 28, 29 and 31 CHILD’S RIGHT TO LIFE AND MAXIMUM SURVIVAL AND DEVELOPMENT 95

124 UNICEF/97-0484/Murray-Lee

125 Birth registration, c l i t e r a name, nationality and right to know and be cared for by parents ... Text of Article 7 1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. 2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. rticle 7 provides for the birth regis- (Human Rights Committee, General Comment tration of children and for children’s No. 17, 1989, HRI/GEN/1/Rev.8, para. 7, p. 185) rights to a name, a nationality and Article 7 of the Convention on the Rights of the to know and be cared for by their A Child also contains a “new” right – the right of parents. the child to know and be cared for by his or her The article ref lects the text of article 24(2) and parents. The right is qualified by the words “as (3) of the International Covenant on Civil and far as possible”. It may not be possible to identify Summary Political Rights: “24(2) Every child shall be re- parents, and even when they are known, it may gistered immediately after birth and shall have not be in the child’s best interests to be cared for a name. (3) Every child has the right to acquire by them. a nationality.” The Human Rights Committee Article 7 should be read in conjunction with article General Comment on article 24 of the Covenant 8 (preservation of identity, including nationality, notes: “In the Committee’s opinion, this provi- name and family relations), article 9 (separation sion should be interpreted as being closely linked from parents), article 10 (family reunification) and to the provision concerning the right to special measures of protection and it is designed to pro- article 20 (continuity in upbringing of children mote recognition of the child’s legal personality.” ■ deprived of their family environment). BIRTH REGISTRATION, NAME, NATIONALITY AND RIGHT TO KNOW AND BE CARED FOR BY PARENTS 97

126 also concerned about persisting difficulties The child’s right to be in ensuring the registration of migrant “registered immediately workers, refugees and asylum seekers as well after birth” as of indigenous and minority communities, particularly those born outside hospitals...” The importance of universal (Thailand CRC/C/THA/CO/2, para. 31) registration Birth registration is also an essential element The registration of all children is important for a of national planning for children, providing the number of reasons identified by the Committee, demographic base on which effective strategies which has consistently expressed concern about can be built. Without registration, for example, countries that fail to secure universal registration. it is unlikely that countries can have an accurate Registration is the State’s first official acknowl- knowledge even of their child mortality rates, a edgement of the child’s existence; it represents key indicator for child survival strategies (see i c t l r e recognition of each child’s individual importance a also the importance of child death registration, to the State and of the child’s status under the law. article 6, page 92). While the costs of securing Where children are not registered, they are likely universal registration may be high, particularly to be less visible, and sometimes less valued. in countries with dispersed rural populations, the Children who are not registered often belong to benefits are substantial, not least in relation to groups who suffer from other forms of discrimi- efficient use of resources. nation. For example: As the Committee has commented, registration is “The Committee is concerned about the necessary: continuing difficulties encountered in ensuring “... to facilitate the effective monitoring of birth registration, particularly of children born the situation of children and thus assist in (Sri Lanka CRC/C/15/Add.40, out of wedlock...” the development of suitably appropriate and para. 14) (Nicaragua CRC/C/15/ targeted programmes.” Add.36, para. 16) “While noting the high level of birth registration, the Committee is concerned at “The Committee recommends that special the information that some groups of children, efforts be developed to guarantee an effective in particular children abandoned at maternity system of birth registration, in the light of wards, children whose parents cannot afford article 7 of the Convention, to ensure the full the registration (related) fee, refugee children enjoyment of their fundamental rights by and children of internally displaced persons all children. Such a system would serve as a still do have difficulties with proper birth tool in the collection of statistical data, in the Georgia CRC/C/15/Add.222, registration.” ( assessment of prevailing difficulties and in the para. 26) promotion of progress in the implementation (Ethiopia CRC/C/15/Add.67, of the Convention...” “... The Committee is ... concerned at the para. 29) information that Roma children are often not registered due to the lack of identification These benefits may not be fully understood by documents for their parents. They are also the population: the Committee noted, in its exam- discriminated against by authorities who ination of Mozambique: refuse to recognize the right of Roma children (Bosnia and Herzegovina to registration.” “... There is widespread misunderstanding, for CRC/C/15/Add.260, para. 32) numerous reasons, of the purposes of birth registration... “The Committee notes with appreciation the “The Committee recommends that the State significant efforts made by the State Party... Party... Conduct information campaigns However, it continues to be concerned that, for the general population explaining in part because of existing family planning the importance and purposes of birth policies, all children are not systematically registration.” (Mozambique CRC/C/15/Add.172, registered immediately after birth in mainland paras. 34 and 35) China, and that this disproportionately affects Registration may, additionally, be a means of girls, children with disabilities and children (China CRC/C/CHN/ born in some rural areas.” securing children’s other rights – such as their CO/2, para. 42) identification following war, abandonment or abduction; enabling children to know their par- “Despite the State Party’s efforts in this area... entage (particularly if born out of marriage); pro- the Committee is nevertheless concerned viding protection by proving children are below about the high number of children that remain legal age limits (for example for employment, or without birth registration, particularly in recruitment to the armed services or in the juve- the most remote areas of the country and in tsunami-affected areas. The Committee is nile justice system), and reducing the danger of Implementation Handbook for the Convention on the Rights of the Child 98

127 trafficking in babies or of infanticide. At its most extreme, non-registration may threaten the physi- A birth certificate is cal survival of the child. For example, at the time required for:* of Peru’s Initial Report, the Committee expressed School Health Marriage Immuni- concern that: zation care enrolment “... due to the internal violence, several Algeria No No Yes Yes registration centres have been destroyed, 1 Argentina No No Yes Yes adversely affecting the situation of thousands Bangladesh No No No No of children who are often left without any Brazil No No Yes Yes identity document, thus running the risk 2 2 of their being suspected of involvement in Ye s China No No Yes terrorist activities.” (Peru CRC/C/15/Add.8, C o l o m b i a Ye s Ye s Ye s Ye s para. 8) No Congo, DR. No No Yes E g y p t Ye s N o Ye s N o i c t l r e Peru has since made “considerable efforts” to a 3 – – – – Ethiopia remedy this situation, although 15 per cent of India No No Yes No Peruvian children are still unregistered (CRC/C/ Indonesia No No Yes Yes PER/CO/3, para. 33). Yes Iran No No Yes No Iraq No No Yes And in Yemen K e n y a Ye s N o Ye s N o “... the Committee wishes to call the attention M e x i c o Ye s Ye s Ye s Ye s of the State Party to the serious implications Morocco No No Yes Yes of the absence of a birth certificate, which can No Myanmar Yes No Yes result in the sentencing of a child to the death Nepal No No No No penalty...” (Yemen CRC/C/15/Add.102, para. 20) Nigeria No No Yes – The Human Rights Committee General Comment Pakistan No No Yes No notes: “The main purpose of the obligation to P e r u N o N o Ye s Ye s register children after birth is to reduce the dan- Yes Philippines No No Yes ger of abduction, sale of or traffic in children or Russian Fed. No Yes Yes Yes of other types of treatment that are incompatible S o u t h A f r i c a Ye s Ye s Ye s N o Sudan No No Yes No with the enjoyment of the rights provided for in Tanzania No No Yes No the Covenant. Reports by States Parties should 4 Ye s Ye s Ye s Ye s Thailand indicate in detail the measures that ensure the Turkey No No Yes Yes immediate registration of children born in their Uganda No No Yes No territory.” (Human Rights Committee, General U k r a i n e Ye s Ye s Ye s N o Comment No. 17, 1989, HRI/GEN/1/Rev.8, para. Uz b e k i s t a n Ye s Ye s Ye s N o 7, p. 185) Viet Nam No No No Yes More problematically, a number of countries TOTAL 10 7 28 14 report that production of a birth certificate is * Among countries with 75 per cent of the world’s under-18 population. necessary for children to secure health care, edu- 1 A birth certificate is required only when the person is under the legal age of cation and other benefits (see box). While the marriage: 16 for girls, 18 for boys. motive is, at least in part, to increase the rate of 2 An identification card is required but a residence card may suffice. birth registration, the Committee has made clear 3 No registration system. 4 that this practice is misguided: the absence of a A house registration card is needed for most services and a birth certificate is needed to obtain a house registration card. A child may attend school but birth certificate should not be used to punish chil- cannot receive a graduation certificate without a registration card. dren by denying them basic rights. For example, , UNICEF, p. 9. The Progress of Nations 1998 Source: it recommended to Belize: “... children whose births have not been registered and who are without official “This can be achieved by a universal, well- documentation should be allowed to access managed registration system that is accessible to basic services, such as health and education, all and free of charge. An effective system must while waiting to be properly registered.” be flexible and responsive to the circumstances (Belize CRC/C/15/Add.252, para. 33) of the family, for example by providing mobile When and how children should be registration units where appropriate. The registered Committee notes that children who are sick or In its General Comment No. 7 on “Implementing disabled are less likely to be registered in some child rights in early childhood” the Committee , regions and emphasizes that all children should discusses how the “major challenge” of securing be registered at birth, without discrimination of universal birth registration should be met: any kind (art. 2). The Committee also reminds BIRTH REGISTRATION, NAME, NATIONALITY AND RIGHT TO KNOW AND BE CARED FOR BY PARENTS 99

128 “... the Committee remains concerned that States Parties of the importance of facilitating not all children are registered at birth and that late registration of birth, and of ensuring that the imposition of a financial fine upon parents children who are not registered have equal who register the birth of their child after the access to health care, protection, education expiry of the official deadline is a hindrance and other social services.” (Committee on the (Guinea Bissau CRC/C/15/ to birth registration.” Rights of the Child, General Comment No. 7, 2005, Add.177, para. 28) CRC/C/GC/7/Rev.1, para. 25) Birth registration should be free, or at least free For obvious reasons, securing universal registra- to poor parents: tion can be difficult for poorer countries and the Committee has gone out of its way to congratu- “... The Committee urges the State Party to ... ensure that all children are registered at late States that have achieved high levels of regis- birth... notably by suppressing any fees and tration, such as Sao Tome and Principe: decentralizing the system” (Haiti CRC/C/15/ “The Committee... commends the State i c t l r Add.202, para. 33) e a Party for the high scores attained in birth registration following the national campaign and for birth registration... The Committee “... The Committee recommends that the recommends that the State Party continue State Party strengthen efforts to enusre that implementing is comprehensive strategy in all children born in Armenia are registered... order to achieve 100 per cent rate of birth including by... waiving fees for the poor.” registration as soon as possible...” (Sao Tome (Armenia CRC/C/15/Add.225, para. 28) and Principe CRC/C/15/Add.235, para. 30) The 1997, Manual on Human Rights Reporting, According to article 7, the child should be notes: “Birth registration should be ensured by birth” which implies registered “immediately after States Parties to every child under their jurisdic- a defined period of days rather than months. tion, including to non-nationals, asylum seekers, However, if for any reason children are not refugee and stateless children... In some situations, registered or if their records have been lost, then, however, practical difficulties may be encoun- as the Committee says, the omission should be tered in the registration of children. States Parties’ made good by the State. reports have shown that this is often the case in relation to children born from nomadic groups, Universal registration requires that domestic law in rural or remote areas where birth registration makes registration a compulsory duty both of offices may be lacking and access to them may, parents and of the relevant administrative author- in view of their distance, pose additional problems ities. Universal plainly means all children born to the children’s families. Similar problems may within the State, irrespective of their national- arise in situations of emergency, including armed ity. The Committee was therefore critical of the conflicts. In such circumstances, States have to Dominican Republic and Japan: adopt solutions which, being designed to ensure “... In particular, concern is expressed about the implementation of this right, are also appro- the situation of children of Haitian origin or priate to the specific particularities of such situ- belonging to Haitian migrant families whose right to birth registration has been denied in ations. In this regard, the establishment of mobile the State Party. As a result of this policy, those registration offices has often shown to be an effec- children have not been able to enjoy fully p. 430) tive option.” ( Manual, their rights, such as to access to health care A systematic approach is consistently endorsed and education.” (Dominican Republic CRC/C/15/ by the Committee: Add.150, para. 26) “The Committee... recommends that the State “The Committee is concerned... that Party improve the existing birth registration undocumented migrants are unable to register system by: the birth of their children, and that this has... (a) Introducing birth registration units and resulted in cases of statelessness.” (Japan public awareness-raising campaigns to reach CRC/C/15/Add.231, para. 31) the most remote areas of its territory; (b) Strengthening cooperation between the However, the Committee has concluded that the birth registration authority and maternity imposition of fines or other sanctions on parents clinics, hospitals, midwives and traditional for failing to register their children is likely to be birth attendants, in order to achieve better counter-productive. For example, it observed that birth registration coverage in the country; Albanian parents who fail to meet a 30-day dead- (c) Continuing to develop and widely line to register their child “encounter additional disseminate clear guidelines and regulations difficulties” (Albania CRC/C/15/Add.249, para. on birth registration to officials at the national 34), and to Guinea Bissau: and local levels; and Implementation Handbook for the Convention on the Rights of the Child 100

129 (d) Ensuring that children whose births have For example, the Committee raised the need for not been registered and who are without systematic registration with Sierra Leone: official documentation have access to basic “The Committee is concerned that the services, such as health and education, while absence of systematic birth registration in the waiting to be properly registered.” (Thailand State Party, thereby preventing an accurate CRC/C/THA/CO/2, para. 32) statement of the identity or age of a child, can make it very difficult for the protection The Committee encourages “innovative and afforded to children by domestic legislation accessible methods” to secure full registra- or by the Convention to be enforced. The tion (Mexico CRC/C/MEX/CO/3, para. 32), for Committee is also concerned at the arbitrary example commending Brunei Darussalam’s “fly- manner, in the absence of birth registration ing doctors team” (CRC/C/15/Add.219, para. 33), records, in which age and identity are Netherlands Antilles’ initiative of a three-month frequently established. “grace period” given to undocumented migrants “In the light of article 7 of the Convention, i c t l r e to register themselves (CRC/C/15/Add.186, para. the Committee recommends that the State a 34) and the creation by Mauritius of “a hotline Party establish as quickly as is possible a practice of systematic birth registration for all operating on a 24-hour basis through which tardy children born within the national territory. The declarations can be made” (CRC/C/MUS/CO/2, Committee further urges the State Party to para. 33). It recommends States to seek techni- proceed with the registration of those children cal assistance from agencies such as UNICEF (Sierra who have not thus far been registered.” and UNFPA (India CRC/C/15/Add.228, para. 39), Leone CRC/C/15/Add.116, paras. 42 and 43) use mobile registration units and conduct public Other information – for example the parents’ information campaigns with a view to: occupations, the child’s siblings or his or her eth- “... increasing the appreciation of the nic status – may also be useful for statistical pur- importance of birth registration and providing information on the procedure of poses, although care must be taken that this does birth registration, including the rights and not invade privacy or lead to forms of discrimina- entitlements derived from the registration, tion. For example, the Committee took note that including through television, radio and printed Rwanda had introduced a new birth certificate (Ghana CRC/C/GHA/CO/2, para. 33) materials...” and identity card “that did not refer to ethnic ori- Falsification of birth records is also a matter of con- gin” (Rwanda CRC/C/15/Add.234, para. 32). For cern, as this can expose children to various forms this reason Honduras reported to the Committee of exploitation. The Committee recommended that the parents’ marriage status is not included that Azerbaijan tackle the problem of “false data” on certificates, though the names of the baby’s and “control the accuracy of birth certificates and grandparents and the baby’s size and birth weight ensure the implementation of the applicable law are required (Honduras CRC/C/3/Add.17, para. 43; in this respect” (Azerbaijan CRC/C/AZE/CO/2, Honduras CRC/C/15/Add.24, para.12; Honduras paras. 31 and 32), and that the Philippines CRC/C/6/Add.2, paras. 416 and 418). “... take effective measures against simulation The registration of the baby’s parents may prove , by assigning a inter alia of birth certificates, problematic. It is hard to find reasons, so far as governmental body, such as the Department of the child is concerned, why the baby’s mother Social Welfare and Development, to monitor should not be registered, although such an omis- the implementation of relevant provisions and sion is permitted in France, to the expressed con- (Philippines CRC/C/15/ file all simulation cases.” Add.259, para. 35) cern of the Committee (see below, page 106). What details should be registered? The matter of naming the father is more com- Although the Convention does not specify what plicated. The State is likely to have an interest must be registered, other rights (to name and in both parents being registered so that they can nationality, to know parentage, family and iden- subsequently be required to maintain the child. tity) imply that registration ought, as a minimum, The child, too, has a right under this article to to include: know who his or her parents are. The Committee raised the matter with Ireland: the child’s name at birth, • “The Committee is concerned about the the child’s sex, disadvantaged situation of children born • of unmarried parents due to the lack of the child’s date of birth, • appropriate procedures to name the father in where the child was born, the birth registration of the child... • “The Committee recommends that the State the parents’ names and addresses, • Party take appropriate measures to establish, as the parents’ nationality status. far as possible, procedures for the inclusion of • BIRTH REGISTRATION, NAME, NATIONALITY AND RIGHT TO KNOW AND BE CARED FOR BY PARENTS 101

130 the name of the father on the birth certificates circumstances prescriptive laws on names may of children born of unmarried parents...” conflict with the non-discrimination rights under (Ireland CRC/C15/Add.85, paras. 17 and 36) article 2 or with the right to peacefully enjoy minority cultural practices under article 30, for However, given that birth registers tend to be pub- example in cases where minority groups have dif- lic documents, the child’s right to privacy must be ferent naming traditions that do not involve using protected, for example in a case where the father parental surnames. has an incestuous relationship with the mother. Belgium reported that it allowed registration of the In this regard the Committee raised its concern single filiation from the mother in such circum- with Greece that “persons who speak a language stances (Belgium CRC/C/11/Add.4, para. 124). other than Greek, including refugees and asylum seekers, have difficulty in registering names The United Nations Statistics Division publishes for their children in their native language” and Handbook on Civil Registration advice in the recommended i c t l r on aspects of birth and Vital Statistics Systems e a registration such as techniques for reaching tar- “... That all children are able to registered get groups, confidentiality and storage of records under, and make use of, their full original and legal frameworks, particularly. (See http:// name as chosen by themselves, their parents millenniumindicators.un.org/unsd/demographic/ or other legal guardians.” (Greece CRC/C/15/ sources/civilreg/civilreg3.htm.) Add.170, paras. 40 and 41) Moreover, where countries go further and enforce The child’s right “from birth a blanket law that the child must, or in some cases to a name” must not, bear the father’s name, this may not be necessarily in the child’s best interests. For exam- The article specifically provides that the right to ple, Belgium maintains an extremely complicated a name should be “from birth”. The Committee set of laws relating to the naming of children born noted that there should be no delay: in and out of marriage, including children born of “The Committee... is concerned that some adulterous relationships where the father’s name children are still not registered at birth and are can only be used with the agreement of the woman not given a name until their baptism, which who was his lawful wife at the time of the con- could be three or four months after their ception. Belgium acknowledged the latter rules birth...” (Grenada CRC/C/15/Add.121, para. 16) have been problematic, since they are as much States should therefore ensure that abandoned about the “moral interests of the conjugal family” babies and children are always provided with a as about the best interests of the child (Belgium name; any temptation to use numbers should be . CRC/C/11/Add.4, para. 123) resisted – for example in circumstances of mass The Committee raised the issue with Uruguay: movement of refugees which include many unac- “In this regard, the Committee is particularly companied children. concerned at the persisting discrimination The Convention does not suggest that chil- against children born out of wedlock, dren have a right to any particular sort of name. including in regard to the enjoyment of their civil rights. It notes that the procedure for the However, a significant number of countries not determination of their name paves the way for only make arrangements for children’s names to their stigmatization and the impossibility of be registered but also prescribe what names are having access to their origins...” (Uruguay used. For example, article 18 of the American CRC/C/15/Add.62, para. 11) Convention on Human Rights (1969) states: “Every person has the right to a given name and It would be dangerous to assume that any inter- to the surname of his parents or that of one of national or domestic law asserting children’s right them. The law shall regulate the manner in which to their parents’ name necessarily represents a this right shall be ensured for all, by the use of provision “more conducive to the realization assumed names if necessary.” of the rights of the child” under article 41 of the Convention on the Rights of the Child. Countries The intention of such a provision appears relatively should also carefully examine any laws on names uncontroversial and protective of certain catego- for inadvertent breach of articles 2 and 3. ries of children – as the Human Rights Committee General Comment observes “providing for the right The provisions of article 5 (parental guidance and to have a name is of special importance in the case the child’s evolving capacities), article 12 (respect of children born out of wedlock” (Human Rights for the child’s opinion) and article 19 (protection Committee, General Comment No. 17, 1989, HRI/ from harm) should also be considered in rela- tion to naming. The right to a name from birth GEN/1/Rev.8, para. 7, p. 185). However in some Implementation Handbook for the Convention on the Rights of the Child 102

131 article 2 of the Convention on the Rights of the is unavoidably a matter for adult caregivers or (Liberia CRC/C/15/Add.236, para. 32) Child.” the State; babies can play no part in choosing their names. However, provision should be made “The Committee is... deeply concerned that so that children can apply to the appropriate the Citizenship Act establishes three different authorities to change their name at a later date. categories of citizenship, possibly resulting in Children’s names can also be changed following some categories of children and their parents the remarriage of parents or adoption. In such being discriminated against, stigmatized and/ circumstances, children’s rights to identity are (Myanmar CRC/C/15/ or denied certain rights.” Add.237, para. 34) also involved and the Committee specifically recommended that New Zealand’s adoption law “The Committee... remains concerned about reform ensured “the right of children, as far as the different types of access to citizenship, possible, to maintain one of their original first which mainly affect children of minority names”. (New Zealand CRC/C/15/Add.216, para. groups, especially Roma children.” (Croatia i c t l r e a 34. See also article 8, page 114.) CRC/C/15/Add.243, para. 31) The Committee took up the question of chil- The issue of children’s nationality is particularly dren’s own rights with the Federal Republic of difficult, given the sensitivity of all nations about Yugoslavia (Serbia and Montenegro): sovereignty and citizenship, differing legal and “The Committee takes note that the principle cultural presumptions on how nationality should of respect for the views of the child has been be acquired and the ever-increasing anxiety of reflected in such situations as the change of richer nations to exclude, or to deny citizenship (Federal Republic of Yugoslavia (Serbia name ...“ to, poor people from other nations. The drafting and Montenegro) CRC/C/15/Add.49, para. 31) of this article and articles 9 (separation from par- Although parents are the persons most likely to ents) and 10 (family reunification) picks a careful decide the child’s name, consistency with the way between these anxieties and the recogni- Convention should not allow this to be an abso- tion that children should have a right to national- lute parental right. Domestic laws should have ity. Article 7(2) thus provides that “States Parties appropriate mechanisms to prevent registration of shall ensure the implementation of these rights in a name that might make a child an object of ridi- accordance with their national law and their obli- cule, bad luck or discrimination, as for example gations under the relevant international instru- in Malawi’s “practice of derogatory names being ments in this field, in particular where the child assigned to some children such as children born would otherwise be stateless.” out of wedlock”, which the Committee recom- Nonetheless, a number of reservations or interpre- mended the government abolish (Malawi CRC/ tative declarations have been entered to article 7 C/15/Add.174, paras. 31 and 32). – by countries such as Liechtenstein, Malaysia, Singapore, Thailand, United Arab Emirates and The child’s right to “acquire a the United Kingdom. These countries indicate that nationality”, with particular their Constitutions or domestic laws relating to reference to the State’s nationality may define or restrict the scope of arti- “obligations under the relevant cle 7. For example, Kuwait stated: “The State of international instruments, in Kuwait understands the concept of article 7 to sig- particular where the child nify the right of the child who was born in Kuwait would otherwise be stateless” and whose parents are unknown (parentless) to be granted Kuwaiti nationality as stipulated by the Some States confer a limited form of nationality Kuwaiti Nationality Laws” (CRC/C/2/Rev.8, p. to certain groups of children, for example to the 27), though in fact stateless children may not nec- children of parents who are not themselves citi- essarily be parentless. The Committee expressed zens. This appears to be a form of discrimination. concern about Kuwait’s nationality laws: The “right to acquire a nationality” implies a right “The Committee is... concerned that in the to all the benefits derived from nationality. light of the State Party’s legislation regarding This point was taken up by the Committee with a citizenship, nationality may only be obtained number of countries, for example: by a child from his/her Kuwaiti father. The Committee recommends that domestic “The Committee is very concerned that the legislation be amended to guarantee that granting of citizenship to children born in the the acquisition of Kuwaiti nationality be State Party is restricted on the basis of colour determined in the light of the provisions and or racial origin by the provisions contained in principles of the Convention, especially articles article 27 of the Constitution and the Alien and (Kuwait CRC/C/15/Add.96, para. 20) the Nationalization Law, which are contrary to 2, 3 and 7.” BIRTH REGISTRATION, NAME, NATIONALITY AND RIGHT TO KNOW AND BE CARED FOR BY PARENTS 103

132 simplifying procedures for the naturalization The wording “right to acquire a nationality” is of children of stateless persons and notes that taken directly from the International Covenant the number of stateless persons in Estonia on Civil and Political Rights (article 24(3)). is decreasing. Nevertheless, the Committee The General Comment by the Human Rights is concerned that the stateless situation Committee already quoted states: “Special of parents, who by virtue of their status attention should also be paid, in the context of are unable to participate fully in Estonian the protection to be granted to the children, to society, negatively impacts on their children’s the right of every child to acquire a nationality, integration into Estonian society. Moreover, it as provided for in article 24, paragraph 3. While is concerned that, under article 21 of the Law the purpose of this provision is to prevent a child on Citizenship, children of former military and from being afforded less protection by society and security service personnel and their spouses the State because he is stateless, it does not neces- and families may be denied citizenship.” (Estonia CRC/C/15/Add.196, para. 28) sarily make it an obligation for States to give their i c t l r e a nationality to every child born in their territory. “... the Committee regrets that children of However, States are required to adopt every appro- Syrian-born Kurdish parents who are stateless priate measure, both internally and in cooperation and have no other nationality at birth with other States, to ensure that every child has continued to be denied Syrian nationality a nationality when he is born. In this connection, and are subject to discrimination, contrary to no discrimination with regard to the acquisition articles 2 and 7 of the Convention.” (Syrian Arab of nationality should be admissible under inter- Republic CRC/C/15/Add.212, para. 33) nal law as between legitimate children and chil- “The Committee is concerned that ... there dren born out of wedlock or of stateless parents are still disparities in practice, in particular or based on the nationality status of one or both with regard to... the acquisition of Jordanian of the parents. The measures adopted to ensure nationality. In this last respect, the Committee that children have a nationality should always be is concerned that in the light of Jordanian referred to in reports by States Parties.” (Human legislation, cases of statelessness might Rights Committee, General Comment No. 17, (Jordan CRC/C/15/Add.21, para. 11) arise...” 1989, HRI/GEN/1/Rev.8, para. 8, p. 185) This concern was revived in the Committee’s The words in article 7(2): “States Parties shall Concluding Observations on Jordan’s Second ensure the implementation of these rights in Report: accordance with their national law and their obli- “... In light of the Committee’s previous gations under the relevant international instru- recommendations ... the Committee remains ments in this field, in particular where the child concerned that restrictions on the right of a would otherwise be stateless” refer primarily to Jordanian woman to pass on her nationality the Convention on Reduction of Statelessness to her child, particularly where she is married (1961), which provides that children should to a refugee, may result in the child becoming (Jordan CRC/C/15/Add.125, para. 29) stateless.” acquire the nationality of the State in which they were born if they are not granted nationality by The Committee consistently recommends that any other State, or if such children fail to make States ratify the 1954 Convention relating to the proper applications to obtain this right, then the Status of Stateless Persons and the 1961 they should be entitled to the nationality of one Convention on the Reduction of Statelessness. of their parents (subject to certain conditions). Nationality can be acquired either from parents Originally it was proposed that the first provision (jus sanguinis ) or from place of birth ( jus soli ). be incorporated into the Convention but difficul- Islamic law favours nationality taken from par- ties with some national laws made this unaccept- entage; some countries prohibit dual nationality, able (E/CN.4/L.1542, pp. 6 and 7; Detrick, pp. so that a choice between nationalities may have 125 to 129). Article 7(2) represents a compromise to be made for children, and some countries have between the two positions and is a clear pointer to the provisions of article 41: “Nothing in the pres- systems that accommodate both parentage and ent Convention shall affect any provisions which place of birth, sometimes with discriminatory are more conducive to the realization of the rights effects. of the child and which may be contained in ... (b) Other potentially discriminatory practices are International law in force for that State.” when the child automatically takes the national- The Committee on the Rights of the Child has ity of the father rather than the mother, or vice raised concerns about stateless children: versa, or when children can only inherit national- ity from married fathers. It should be noted that “The Committee welcomes the amendments made in 1998 to the Law on Citizenship article 9(2) of the Convention on the Elimination Implementation Handbook for the Convention on the Rights of the Child 104

133 or “birth” parents, and there might also be “psy- of All Forms of Discrimination against Women states: “States Parties shall grant women equal chological” or “caring” parents, such as adoptive rights with men with respect to the nationality of or foster parents, who acted as the child’s primary their children.” caregiver throughout his or her infancy. The United Arab Emirates, the United Kingdom When article 7 was drafted, it was pointed out and Japan, for example, were among those that the laws of some countries – for example, the criticized by the Committee: former German Democratic Republic, the United States of America and the former Union of Soviet “The Committee is concerned that the nation- Socialist Republics – upheld “secret” adoptions ality law does not grant citizenship status to whereby adopted children did not have the right children of a woman citizen of the Emirates to know the identity of their biological parents married to a non-national, as it does where the (United father is a national of the Emirates.” (E/CN.4/1989/48, pp. 18 to 22; Detrick, p. 127). Arab Emirates CRC/C/15/Add.183, para. 30) i c t l However, nowadays the term “biological” parent r e a may have a more complex meaning. For exam- “The Committee recommends that the State ple, where egg donation is concerned, the biologi- Party... amend the nationality law to allow cal parent could be either the genetic parent (the transmission of nationality through unmarried donor of the egg) or the birth mother. (United Kingdom as well as married fathers.” CRC/C/15/Add.188, para. 23) Countries have entered declarations and reserva- tions in relation to this right: “The United Kingdom “The Committee is concerned that a child of interprets the references in the Convention to ‘par- a Japanese father and foreign mother cannot obtain Japanese citizenship unless the father ents’ to mean only those persons who, as a mat- has recognized the child before its birth, which ter of national law, are treated as parents. This has, in some cases, resulted in the child being includes cases where the law regards a child as (Japan CRC/C/15/Add.231, para. 31) stateless.” having only one parent, for example where a child has been adopted by one person only and in cer- The words “the right to acquire a nationality” tain cases where a child is conceived other than as can be interpreted as being the right “from birth”, a result of sexual intercourse by the woman who (Principle 3 of the Declaration of the Rights of gives birth to it and she is treated as the only par- the Child (1959) states simply: “The child shall ent.” (CRC/C/2/Rev.8, p. 42) be entitled from his birth to a name and a nation- ality”), but in any event must mean that state- “In cases of irrevocable adoptions, which are less children should have the right to acquire based on the principle of anonymity of such adop- the nationality of the country in which they have tions, and of artificial fertilization, where the phy- lived for a specified period. The latter provision sician charged with the operation is required to is important given the growing numbers of state- ensure that the husband and wife, on the one hand, less, often parentless, children who receive ade- and the donor, on the other, remain unknown to quate protection from the country in which they each other, the non-communication of a natural live throughout their childhood but then discover parent’s name or natural parents’ names to the that they are unlawful residents at the time of child is not in contradiction with this provision.” their majority. (Czech Republic, CRC/C/2/Rev.8, p. 20) Decisions about nationality are often made by “The Government of Luxembourg believes that parents at the time of the child’s birth. Older chil- article 7 of the Convention presents no obstacle to dren, however, should be able to apply on their the legal process in respect of anonymous births, own behalf to change their nationality. Canada which is deemed to be in the interest of the child, was commended for adopting laws to facilitate as provided under article 3 of the Convention.” the acquisition of citizenship by children adopted (CRC/C/2/Rev.8, p. 28) abroad by Canadian citizens, an essential com- Notwithstanding these reactions, a reasonable ponent of foreign adoptions. (Canada CRC/C/15/ assumption is that, as far as the child’s right to Add.215, para. 26) know his or her parents is concerned, the def- inition of “parents” includes genetic parents “as far as possible, the right (for medical reasons alone this knowledge is of to know... his or her parents” and birth par- increasing importance to the child) ents, that is the mother who gave birth and the Meaning of “parent” father who claimed paternity through partner- A few decades ago the definition of “parent” was ship with the mother at the time of birth (or what- fairly straightforward. There were the “biologi- cal” parents, sometimes known as the “natural” ever the social definition of father is within the BIRTH REGISTRATION, NAME, NATIONALITY AND RIGHT TO KNOW AND BE CARED FOR BY PARENTS 105

134 to the full implementation of the rights of culture: the point being that such social definitions (Saint Vincent children to know their parents.” are important to children in terms of their iden- and the Grenadines CRC/C/15/Add.184, paras. 26 tity). In addition, a third category, the child’s psy- and 27) chological parents – those who cared for the child for significant periods during infancy and child- “Given the information that some 50 per hood – should also logically be included since cent of all households in the State Party are headed by women, the Committee expresses these persons too are intimately bound up in chil- its concern that the establishment of legal dren’s identity and thus their rights under article 8 paternity, where the biological father does (see page 114). not want to legally recognize the child, is time Certainly the Committee has expressed dismay at consuming and expensive... Luxembourg’s concept of an ‘anonymous’ birth: “... the Committee recommends that the State Party facilitate the establishment of legal “The Committee remains concerned about paternity for children born out of wedlock by i c the fact that the children born anonymously t l r e a creating accessible and expeditious procedures (‘under x’) are denied the right to know, as and by providing mothers with necessary legal far as possible, their parents... [and] urges the (Antigua and other assistance in this regard.” State Party to take all necessary measures to and Barbuda CRC/C/15/Add.247, paras. 33 and 34) prevent and eliminate the practice... “In case anonymous births continue to In some countries even the mother’s identity may take place, the State Party should take the be concealed at her request, for example in Italy necessary measures so that all information and France: about the parent(s) are registered and filed “The Committee is... concerned that children in order to allow the child to know – as far as born out of wedlock legally do not have a possible and at the appropriate time – his/her mother or a father unless they are recognized (Luxembourg CRC/C/15/Add.250, parent(s).” (Italy by their mothers and/or fathers.” paras. 28 and 29) CRC/C/15/Add.198, para.27) Meaning of “as far as possible” “... The Committee remains concerned that... It is necessary to distinguish between different the right to conceal the identity of the mother situations. if she so wishes is not in conformity with the First there are children whose parent cannot be (France provisions of the Convention.” CRC/C/15/Add.240, para. 23) identified (for example, when the mother does not know who the father is or when the child Third, there are the situations when the State has been abandoned). States Parties can do little decides that a parent not be identified. should about this, although legislation under article 2 For example: must ensure that such children are not discrimi- where adoption law limits the children’s enti- nated against. • tlement and access to information to know Second, births occur where the mother refuses that they are adopted and who their genetic to identify the father (including extreme circum- parents are. The Committee has expressed stances, for example in cases of incest or when concern about a number of countries that the father has raped the mother). While mothers maintain policies of ‘secret’ adoptions and could, arguably, be legally required to name the always firmly recommends that the children father, it would be difficult to enforce this and be told about their parentage: conflict could be raised between the mother’s “The Committee reiterates its concern at rights and the child’s rights. However, in many the practice of keeping the identity of countries fathers of children born out of marriage biological parents of the adoptee secret... often refuse to be identified. While recogniz- “... The adoption law should guarantee the ing that this is a social problem, the Committee right of the child to know his or her origin believes that the State also has a role to play: and to have access to information about “The Committee is concerned that many the background and vital medical history children born out of wedlock do not know the of both the child and biological parents...” identity of their father, inter alia , because of (Armenia CRC/C/15/Add.225, para. 38) societal pressures that cause mothers to be “The Committee notes with concern that reluctant to file a paternity action... the right of an adopted child to know his or “Noting the supportive role that the her original identity is not protected in the Department of Family Services is already State Party. playing in this regard, the Committee “The Committee encourages the State recommends that the State Party further Party to protect the right of the adopted facilitate and support the activities (including paternity procedures) which will contribute child to know his or her original identity, Implementation Handbook for the Convention on the Rights of the Child 106

135 establishing appropriate legal procedures although this was proposed by some delegates in for this purpose, including recommended the drafting sessions (E/CN.4/1989/48, pp. 18 to age and professional support measures.” 22; Detrick, p. 129). The words “as far as pos- (Russian Federation CRC/C/RUS/CO/3, paras. 40 sible” appear to provide a much stricter and less and 41) subjective qualification than “best interests”. The “The Committee urges the State Party... words imply children are entitled to know their to ensure that adopted children at the parentage if this is possible, even if this is deemed appropriate age have the right to access to be against their best interests. But the holis- to the identity of their biological tic nature of the Convention suggests that a child (Uzbekistan CRC/C/UZB/CO/2, parents...” who would definitely be harmed by the discovery paras. 40 and 41) of his or her parent’s identity could be prevented from having this information. This interpreta- where the law requires a falsification of pater- • tion is supported by the fact that “as far as pos- nity on the birth certificate, for example in rela- i c t l r e sible” also covers the child’s right to be cared for a tion to a child whose father is not the mother’s by his or her parents – and no one could maintain current husband or, as in the case of Uruguay, that “as far as possible” in that context does not where the Committee deplored the fact that as include consideration of the child’s best interests. regards children born out of marriage: But it is clear that children’s right to know their “... when born to a mother or father parentage could only be refused on the grounds of who is a minor, these children cannot be best interests in the most extreme and unambigu- (Uruguay recognized by that parent.“ CRC/C/15/Add.62, para. 11) ous circumstances, and children should be given the opportunity for this decision to be reviewed at in with anonymous egg/sperm donation for • a later date. fertilization, where most countries pro- vitro Second, “best interests” is nowhere defined and tect the secrecy of the donor; there are no easy answers as to whether it is more where the State tacitly encourages the aban- • harmful to children’s best interests to give them doning of children, as for example, Austria: distressing information about their origins or to “The Committee is concerned at the refuse them this information on the grounds the practice of anonymous birth in the State information might cause them harm. Party (also known as ‘baby flaps’ or ‘baby nests’) and notes the information that Third, the Convention’s articles 5 (evolving some data on the parent(s) are collected capacities of the child) and 12 (child’s opinion) (Austria CRC/C/15/ in an informal manner.” suggest that the determination of what is or is not Add.251, para. 29) in the child’s best interests so far as knowledge of origins is concerned may not be made just at one This last category, of state-approved secrecy, point during the child’s life. The best interests of includes the most controversial aspects of the a 6-year-old in relation to this issue may be quite interpretation of “as far as possible”, appearing different from the best interests of a 16-year- to unnecessarily breach children’s right to know old. This is not to say that adopted children are their genetic parents. obliged to contact or even to be told the details Some States Parties argue that “secret” adop- of their genetic parents (although it appears to tions (where the child is not entitled to discover be the accepted practice in most countries that his or her genetic parents) are necessary to secure children should know the circumstances of their the success of an adoption. However, many other birth from as early an age as possible. In the countries have shown that policies of open adop- Netherlands, for example, “it is standard practice tions do not adversely affect the outcome for the for the child to be informed about its natural par- child. ents. The adoption court checks that this has been done” (Netherlands CRC/C/51/Add.1, para. 76)). The United Nations Declaration on Social and Many children choose not to trace their genetic Legal Principles Relating to the Protection and parents, since the significant parents in their lives Welfare of Children with Special Reference to are likely to be those who have cared for them Foster Placement and Adoption Nationally and and raised them. Nonetheless under the terms of Internationally provides that “The need of a fos- article 7, the State should ensure that information ter or an adopted child to know about his or her about genetic parents is preserved to be made background should be recognized by persons available to children if possible. responsible for the child’s care unless this is con- trary to the child’s best interests” (article 9). A stronger argument, mounted by those countries that maintain secrecy, is not about the rights of Three points should be noted. First, article 7 the child (or of the adopting couple) but about does not refer to “the best interests of the child,” BIRTH REGISTRATION, NAME, NATIONALITY AND RIGHT TO KNOW AND BE CARED FOR BY PARENTS 107

136 And protecting the child’s mother from extreme forms of social condemnation, such as ostracism, injury “The Committee notes that, according to ... or death. In such instances there are competing the law on Medically Assisted Procreation, a child can be informed of the identity of his/her rights: children’s rights to know their origins father only if he/she has a legitimate interest and mothers’ rights to confidentiality and pro- and is concerned at the meaning of ‘legitimate tection. Article 30 of the Hague Convention on interest‘ in that regard... Protection of Children and Cooperation in respect “... the Committee recommends that the State of Intercountry Adoption (1993) (see article 21, Party ensure, as far as possible, respect for page 299) upholds mothers’ rights, empowering the child’s right to know his or her parents’ the State of origin of the child to withhold (Switzerland CRC/C/15/Add.182, identities.” information about the parents’ identity. Those paras. 28 and 29) countries that maintain adoption secrecy in order to protect the mother should, nonetheless, have “... as far as possible, i c t l r e a provisions to release information to the child, the right to... be cared for either with the mother’s permission or at a time by his or her parents” when she will not suffer harm. The Committee has not accepted arguments in favour of actively This right must be read in the context of three falsifying the records of adopted children. other articles – article 5, which acknowledges, alongside the primacy of parents, “the members Similar arguments prevail over falsifying parent- of the extended family or community as pro- age in cases of adultery. Some countries require vided for by local custom” (see page 76); article 9, that husbands are the lawfully recognized fathers which requires that “a child shall not be separated of any children born within that marriage. In from his or her parents against their will, except many cases this entails the complicity of the when... such separation is necessary for the best mother and is likely to be rather more to the bene- interests of the child” (see page 122) and article fit than to the disadvantage of the child. However, 18, which endorses the principle that both parents there is a difference between individuals lying have joint responsibility for caring for their and States enforcing a lie. In some circumstances children, appropriately supported by the State both parents will want the true parentage of a (see page 237). Article 27 (requiring States to child to be declared and may be prevented by the assist parents in their material responsibilities in law from doing so. relation to caring for children) is also relevant. Regarding the secrecy of egg and sperm donation, The right to be “cared for” by both parents two arguments are commonly made. First, that it implies a more active involvement in the child’s is not in the best interests of the child to know life by the absent parent than simply paying the of his or her artificial conception. This does not other parent or the State money to support the seem convincing, however, particularly now there child (see article 27(4), page 401). It should be are medical reasons for knowing genetic parent- noted that unlike article 5, which refers to the age. Second, it is argued that unless their ano- (albeit limited) rights of parents and others, this nymity is secured donors will be deterred, fearing article is framed in terms of the child’s right, not future embarrassment or even maintenance suits the parents’. (At one stage the drafting of this by their biological children. However, legislation article included the proposed formulation “The can protect a donor parent from maintenance suits child shall have the right from his birth to know and the experience of some countries suggests and belong to his parents”, but the words “belong that donors are not deterred by the possibility of to” were considered inappropriate in a conven- being identified, though numbers may fall ini- tion on children’s rights. [E/CN.4/1989/48, pp. 18 tially. In any event, the law on artificial forms of to 22; Detrick, p. 127]) fertilization, as with adoption, should be framed This focus on the child’s right must cast doubt on to protect the rights and well-being of children, the legitimacy of Luxembourg’s official decla- not to meet the needs of childless couples. ration that it would maintain its law which says: The Committee has commented: “If at the time of conception, the father or mother “Concerning the right of the child to know was bound in marriage to another person, the his or her origins, the Committee notes the natural child may be raised in the conjugal home possible contradiction between this provision only with the consent of the spouse of his parent.” of the Convention with the policy of the State (CRC/C/2/Rev.8, p. 28) Party in relation to artificial insemination, As with children’s right to know their parents, the namely in keeping the identity of sperm donors secret.” (Norway CRC/C/15/Add.23, para. 10) right to be cared for by parents is qualified by the Implementation Handbook for the Convention on the Rights of the Child 108

137 words “as far as possible”. The purpose of this decide that they would rather not be cared for by proviso is in one sense self-evident. It may not be parents, although parents and State do not support possible if the parents are dead or have repudiated this. Among the many thousands of homeless chil- the child. It also may not be possible when the dren in all countries are those who fall into this state authorities have judged that parental care is category – children who have, in effect, voted not in the child’s best interests because the parents with their feet. States need flexible, child-centred are abusive or neglectful (see article 9, page 122). procedures where runaway children are con- However, the onus is on the State to prove this; the cerned. Any automatic return of such children to right upholds a general principle running through parents without investigation of the reasons why the Convention – that in ordinary circumstances, they ran away and without provision of alternative children are best off with their parents. measures of care, for example, is in conflict with the provisions and principles of the Convention. The point at which this right becomes most i problematic is perhaps when children themselves c t l r e a Reporting guidelines: see Guidelines for Periodic Reports (Revised 2005) (CRC/C/58/Rev.1), Appendix 3, page 699. BIRTH REGISTRATION, NAME, NATIONALITY AND RIGHT TO KNOW AND BE CARED FOR BY PARENTS 109

138 i c t l r e a Implementation Checklist General measures of implementation • Have appropriate general measures of implementation been taken in relation to article 7, including: identification and coordination of the responsible departments and agencies at ■ ■ all levels of government (article 7 is relevant to the departments of justice, home affairs, social welfare and health )? ■ ■ identification of relevant non-governmental organizations/civil society partners? ■ a comprehensive review to ensure that all legislation, policy and practice is ■ compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation which includes where necessary the identification of goals and indicators of ■ ■ progress? ■ which does not affect any provisions which are more conducive to the rights of ■ the child? which recognizes other relevant international standards? ■ ■ ■ ■ which involves where necessary international cooperation? (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole.) budgetary analysis and allocation of necessary resources? ■ ■ development of mechanisms for monitoring and evaluation? ■ ■ ■ making the implications of article 7 widely known to adults and children? ■ ■ ■ development of appropriate training and awareness-raising (in relation to article 7 training of birth registration officers, social workers, adoption likely to include the )? agency staff and medical personnel Specific issues in implementing article 7 • ■ ■ Does domestic law require parents to register children immediately after their birth? ■ ■ Is the duty to register well publicized? Is registration free? ■ ■ ■ ■ Is registration made easy for parents, both in terms of access (for example by providing mobile registration units or using schools) and comprehensibility (for example by use of minority languages or by training registration staff)? Are all children born within the jurisdiction registered, including those born of ■ ■ non-citizens? ■ ■ Where parents fail to register children, is there a duty on the State to secure registration? Does registration include necessary information for the child to claim his or her rights to: a name? ■ ■ ■ a nationality? ■ knowledge of parentage? ■ ■ Implementation Handbook for the Convention on the Rights of the Child 110

139 i c t l r e a see page XIX How to use the checklist, ■ Are arrangements in place to secure the confidentiality of any potentially ■ stigmatizing information on the birth register? Does domestic law provide for the naming of all children from birth? ■ ■ Does this law ensure that no children are discriminated against (for example by laws ■ ■ unrelated to the best interests of children, requiring or prohibiting certain forms of naming)? ■ ■ Are children of appropriate maturity able to apply to change their names? ■ ■ Are the courts empowered to veto a name that is against the best interests of the child (for example one which could render the child an object of fear or ridicule)? Does domestic law ensure that all stateless children living within the jurisdiction ■ ■ have a right to acquire the State’s nationality? ■ Has the State ratified The Convention on Reduction of Statelessness (1961)? ■ ■ ■ Has the State ensured that there is no discrimination between forms of nationality? Has the State ensured that there is no discrimination in the acquisition of nationality ■ ■ (for example in relation to children born out of marriage or to rights to acquire the nationality of either parent)? Are children able to apply to change their nationality? ■ ■ Does domestic law and administrative practice ensure that the identities of ■ ■ children’s parents (including genetic parents, birth mother and caring parents) are accurately recorded and preserved? ■ ■ Do children have the right to know from the earliest date possible the truth about the particular circumstances of their parenting (for example by adoption or by an artificial form of conception)? ■ ■ Do all children, including adopted children and children conceived by artificial forms of conception, have the right to know, as far as possible, who their genetic parents are? Is refusal of this right limited only to the grounds that refusal of information is ■ ■ necessary to protect the child from a likelihood of harm or is necessary to protect the child’s parent from a likelihood of harm? ■ When children are refused the right to know parentage, are they able to reapply at ■ a later date? Does domestic law contain a presumption that children should be cared for by their ■ ■ parents? Is this law framed as the child’s right? ■ ■ ■ ■ Where children do not wish to be cared for by parents, is provision made to investigate the reasons why they do not and to provide alternative measures of care while arrangements for their future are being determined? BIRTH REGISTRATION, NAME, NATIONALITY AND RIGHT TO KNOW AND BE CARED FOR BY PARENTS 111

140 i c t l r e a see page XIX How to use the checklist, The Convention is indivisible and its articles are interdependent. Reminder : Article 7 should not be considered in isolation. Particular regard should be paid to: The other general principles Article 2: all rights to be recognized for each child in the jurisdiction without discrimination on any ground Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 6: right to life and maximum possible survival and development Article 12: respect for the child’s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child Closely related articles Articles whose implementation is particularly related to that of article 1 include: Article 5: parental guidance and child’s evolving capacities Article 8: preservation of child’s identity Article 9: non-separation from parents except when necessary for best interests Article 10: international family reunification Article 11: protection from illicit transfer and non-return of children abroad Article 16: protection from arbitrary interference in privacy, family and home Article 18: parents having joint responsibility Article 20: children deprived of their family environment Article 21: adoption Article 22: refugee children Article 30: children of minorities or indigenous peoples Article 35: prevention of sale, trafficking and abduction Implementation Handbook for the Convention on the Rights of the Child 112

141 c l i t e r a Preservation of identity ... Text of Article 8 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. 2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity. rticle 8 of the Convention on the a Declaration on the Protection of All Persons Rights of the Child concerns the from Enforced Disappearance in 1992 (resolution children’s rights to identity and 47/133). In 2006 the General Assembly adopted their rights to have such identity A the International Convention for the Protection of Summary preserved or, where necessary, re-established by All Persons from Enforced Disappearance, which the State. also deals with the preservation of these chil- dren’s identity. The article was introduced in the Working Group drafting the Convention by an Argentinean del- Although article 8 only describes three aspects of egate on the grounds that it was necessary to identity – nationality, name and family relations secure the speedy intervention of the State when – other articles, such as article 2 (non-discrimina- the child’s right to preserve his or her identity had tion), article 7 (right to a name and nationality and been violated. Argentina was at the time tack- to know and be cared for by parents), article 16 ling the disappearance of children and babies, (protection from arbitrary interference in privacy, which had occurred under the regime of the family and home) and article 30 (right to enjoy Argentinean junta during the 1970s and 1980s. culture, religion and language), should protect While many such children were killed, a num- against other forms of interference in children’s ber had been adopted by childless couples; active identity. Article 20 also provides that children steps were needed to trace these children and deprived of their family environment should establish their true identity (E/CN.4/1986/39, where possible have continuity of upbringing, pp. 8 to 10; Detrick, pp. 292 to 294). The United particularly with regard to their ethnic, cultural Nations General Assembly subsequently adopted and linguistic background. ■ PRESERVATION OF IDENTITY 113

142 had no meaning in their legal codes, and they pro- Child’s right “to preserve his posed a change to “family identity as recognized or her identity including by law”; others simultaneously proposed chang- nationality, name and family ing “family identity” to “family relations”. Both relations as recognized by law changes were accepted, although, in fact, it seems without unlawful interference” that “as recognized by law” is inappropriate, because Argentina’s original point was that iden- The three elements of identity particularly speci- tity includes more than just legal forms of identity fied are nationality, name and family relations (E/CN.4/1986/39, pp. 8 to 10; Detrick, p. 294). (as recognized by law). The phrase does however recognize an important Nationality principle, which is that a child’s identity means As discussed in relation to articles 7 and 10, the more than just knowing who one’s parents are rights of children to nationality are not strong i c (see article 7, page 105). Siblings, grandparents t l r e a under the Convention. The link between national- and other relatives can be as, or more, impor- ity and their rights to identity is therefore impor- tant to the child’s sense of identity as his or her tant. A child’s “national identity” may derive from parents are. Most domestic legal instruments the nationality of his or her parents, which sug- governing, for example, adoption, fostering or gests that any legislation preventing children from divorce arrangements, fail to recognize this fact inheriting the nationality of their parents might not – children may be given legal rights to discover be compatible with the Convention – for exam- who their biological parents are, or to make ple those States that prohibit dual nationality or applications for contact with them, but rarely do those States that do not recognize the right of chil- those rights extend to cover other members of the dren to inherit the nationality of their unmarried child’s biological family. father. Equally, the child’s “national identity” can The concept of “children’s identity” has tended be acquired through residence as well as through to focus on the child’s immediate family, but it parentage, which renders questionable those States is increasingly recognized that children have a that do not allow children to acquire full national- remarkable capacity to embrace multiple relation- ity from significant periods of residence. And once ships. From the secure foundation of an estab- a child has acquired citizenship, removal of this lished family environment, children can enjoy may amount to an assault on his or her ‘identity’: complex and subtle relationships with other adults “The Committee is concerned that in some and with a range of cultures, to a much larger instances, children can be deprived of their degree than may be recognized. Thus children’s citizenship in situations where one of their best interests and senses of identity may be sus- parents loses his/her citizenship. “... The Committee... recommends that no tained without having to deny them knowledge child be deprived of his/her citizenship on any of their origins, for example after reception into ground, regardless of the status of his/her state care, through “secret” adoptions or anony- parent(s).” (Australia CRC/C/15/Add.79, mous egg/sperm donations and so forth (see also paras. 14 and 30) article 7, page 105). Name Children who live in a different country from Some States prohibit children’s names being that of one or both of their parents may not be changed by their parents (for example on divorce able to preserve their identity, as expressed by and remarriage), although this tends to be more their family relations. Those countries that main- due to respect for fathers’ rights than for chil- tain long waiting lists for immigrant or emigrant dren’s. It should be noted that most adoption children to be granted permission to join their law authorizes a change of name (although some parents should ensure that such cases are dealt States require older children’s consent for any with speedily and with a presumption in favour of name change). This topic is also discussed under the child being allowed to join their parents (see article 7 (see page 102). articles 9, 10 and 22). Family relations Additional Protocol I to the Geneva Conventions The phrase “family relations as recognized by provides for the preservation of the identity of law” is unclear. It emerged from a less than children who have been displaced or evacu- logical series of amendments in the drafting pro- ated in time of war. The authorities must provide cess. The original version from Argentina was each child with a card to be sent to the Red Cross “the child has the inalienable right to retain his Central Tracing Committee. The card should true and genuine personal, legal and family iden- include a photograph and details of the child’s name, sex, date and place of birth, name of parents tity”. Some States protested that “family identity” Implementation Handbook for the Convention on the Rights of the Child 114

143 etc. and the children to be placed in such and next-of-kin, the child’s nationality, native lan- care are provided with adequate social guage, religion, home and present addresses, any background investigation and written detailed identifying marks and health details, and details documentation which follows the child of where the child was found. through the out-of-home care period. These Name, nationality and family are only some multidisciplinary files need to be regularly updated and completed during the child’s elements of identity. Other aspects of identity development...” (Committee on the Rights of the include: Child, Report on the fortieth session, September the child’s personal history since birth – 2005, CRC/C/153, para. 680) • where he or she lived, who looked after him The Committee raised concerns with China about or her, why crucial decisions were taken, etc. its failure to provide birth certificates for children the child’s race, culture, religion and lan- who were undergoing an international adoption • guage. An ‘unlawful’ interference in this i c t l process: r e a aspect of identity could include “The Committee is... concerned about the lack of explicit guarantees that children without the suppression of minority languages in • birth certificates maintain their right to an the education system, state information identity throughout the adoption process... and the media; “The Committee recommends that the State state persecution or proscription of the Party... enact legislative and administrative • practice of a religion; measures to ensure that all children without birth certificates are guaranteed their right to failure to give adopted, fostered or insti- • an identity throughout the adoption process...” tutionally placed children the opportunity (China CRC/C/CHN/CO/2, paras. 52 and 53) to enjoy their ethnic, cultural, linguistic or It also raised concerns with the Seychelles: religious heritage; “The Committee is concerned that... children the child’s physical appearance, abilities, of divorced or separated parents may not be • gender identity and sexual orientation. able to preserve their identity.” The preservation of some of these aspects of iden- It recommended that the Seychelles tity is also upheld in article 20, which provides “... review its legislation to ensure...that all that when children are without families “due children of divorced or separated parents have regard shall be paid to the desirability of continu- the legal right to maintain their identity.” ity in the child’s upbringing and to the child’s eth- (Seychelles CRC/C/15/Add.189, paras. 30 and 31) nic, religious, cultural and linguistic background” And with Peru, at the time of its Initial Report: (see page 288) and article 30, which upholds the “The Committee is concerned that, due to the right of children of minority and indigenous com- internal violence, several registration centres munities to enjoy and practice their culture, reli- have been destroyed, adversely affecting the gion and language (see page 455). situation of thousands of children who are often left without any identity document, thus “Preserve” running the risk of their being suspected of The word implies both the non-interference in involvement in terrorist activities... identity and the maintenance of records relating to “Special measures should be undertaken to genealogy, birth registration and details relating to provide undocumented children fleeing zones early infancy that the child could not be expected affected by internal violence with adequate to remember. Some of these are beyond the scope (Peru CRC/C/15/Add.8, identity documents.” of the State, but measures should be taken to paras. 8 and 17) enforce detailed record-keeping and preservation Principle 16 of the United Nations High of records (or, in the case of abandoned children, Commissioner for Human Rights 1998 Guiding preservation of identifying items) where children provides Principles on Internal Displacement are refugees, abandoned, fostered, adopted or that “All internally displaced persons have the taken into the care of the State. Equal care must right to know the fate and whereabouts of miss- be taken to ensure such records are confidential ing relatives” and “The authorities concerned (see article 16, page 209). In a General Discussion shall endeavour to establish the fate and where- on “States’ role in preventing and regulating sepa- abouts of internally displaced persons reported ration” the Committee recommended: missing, and cooperate with relevant interna- “... that all children residing in out-of-home tional organizations engaged in this task. They care, including the foster families, public shall inform next of kin on the progress of the and private residential institutions and investigation and notify them of any result.” care providers, religious care institutions, PRESERVATION OF IDENTITY 115

144 Principle 20(2) states that “... the authorities violation, the provision could appear to be too weak concerned shall issue to [internally displaced since the State also prescribes the laws. However, persons] all documents necessary for the enjoy- in some instances, the State will have a valid reason ment of their legal rights, such as passports, for interfering with a child’s identity, for example personal identification documents, birth cer- when this is necessary for the child’s best interests tificates and marriage certificates. In particu- or to protect others. lar, the authorities shall facilitate the issuance of new documents or the replacement of docu- The right of a child who has ments lost in the course of displacement, with- been “illegally deprived of out imposing unreasonable conditions, such as some or all of the elements requiring the return to one’s area of habitual res- of his or her identity” to be idence in order to obtain these or other required provided by the State with documents” (see page 311). “appropriate assistance and i c t l r e a Article 9(4) of the Convention requires States to protection with a view to inform children and parents of the whereabouts speedily re-establishing his or of each other if the State has had responsibility her identity” for their separation (for example through impris- onment, deportation or death). A right to pres- This right means that the State must recognize ervation of identity also suggests that the law the seriousness to children of any deprivation of should place penalties on those who breach it. their identity by dedicating resources to remedy This certainly is the recommendation of the 1992 the situation. The Committee noted the steady Declaration on the Protection of All Persons from progress being made in Argentina, the State Enforced Disappearance: “The abduction of chil- that originally proposed the need for article 8: dren of parents subjected to enforced disappear- “The Committee recognizes the work done ance or of children born during their mother’s by the National Commission for the Right to enforced disappearance, and the act of altering or an Identity to recover children missing during suppressing documents attesting to their true iden- the military regime in power from 1976 to 1983, and notes out of an estimated 500 cases tity, shall constitute an extremely serious offence, of disappearances of children, 73 have been which shall be punished as such.” (Article 20) found.” (Argentina CRC/C/15/Add.187, para. 34) The new International Convention for the Protec- And the struggle by Rwanda: tion of All Persons from Enforced Disappearance, “The Committee takes note of the efforts adopted by the General Assembly in 2006, recog- made by the State Party to re-establish nizes the right of victims of disappearance to jus- the identity of a large number of children tice and reparation, and commits ratifying States evacuated to different countries during and to criminalizing all forms of enforced disappear- just after the genocide of 1994. However, the ance. Article 25 specifically requires measures to Committee is concerned that it has not yet prevent and punish the wrongful removal of chil- been possible to identify many children and dren of disappeared persons or the tampering reunite them with their families.” (Rwanda with documents giving their true identity. Where CRC/C/15/Add.234, para. 30) these children have been adopted, States must It urged El Salvador to do more in this respect: have legal provisions to annul the adoption if it “The Committee is concerned that the State is in the children’s best interests to uphold their Party has not taken a more active role in rights to identity. The Convention stresses that efforts to investigate the disappearance of the best interests of the child shall be “a primary more than 700 children during the armed consideration” and the child’s views should be conflict between 1980 and 1982. given due weight. (It should be noted that, under “In the light of article 8 of the Convention, articles 9 and 21 of the Convention on the Rights the Committee recommends that the State of the Child, the child’s best interests must be par- Party assume an active role in efforts to trace amount in such a decision, not merely a primary the children who disappeared during the factor.) armed conflict, and, in line with the Human Rights Committee, encourages the State Party “Without unlawful interference” to proceed with plans to establish a national suggests that the child’s right to preservation This commission with adequate resources and of identity can be lawfully violated – a sugges- capacity to trace the disappeared children. tion questioned by some countries when this art- It also encourages the State Party ratify the Inter-American Convention on the Forced icle was being drafted (E/CN.4/1989/48, pp. 55 and Disappearance of Persons.” (El Salvador 56; Detrick, pp. 295 and 296). Certainly in those CRC/C/15/Add.232, paras. 31 and 32) cases where the State itself is guilty of a harmful Implementation Handbook for the Convention on the Rights of the Child 116

145 based on an irregular situation, such as the child’s “Ap propriate assistance” abduction, or to penalize such possible offences... This could include: the establishment of mechanisms to re-establish making available genetic profiling to establish the child’s identity, such as a national data bank • parentage; where changes made in the elements of the iden- actively tracing relatives or community mem- tity of children (including the name, national- • bers of unaccompanied refugee children; ity and family relations) may be kept and, when using the media to advertise missing children appropriate, acceded to.” ( Manual, pp. 432 and • and to reunite families; 433) ratifying the Hague Convention on the Civil In times of war, speedy efforts to reunite par- • Aspects of International Child Abduction, ents and children are particularly important. The and generally ensuring that any child-custody Committee observed to Sierra Leone: i c t cases where an illegal abduction has been l r e a “The Committee is deeply concerned at the alleged (including those relating to interna- large numbers of children who have been tional disputes) are expeditiously dealt with deprived of a family environment through the at an appropriately senior level in the judi- death of, or separation from, their parents or ciary, that is, within days or weeks rather than other family, and at reports of the difficulties months (see article 11, page 144); and slow progress in tracing separated families ratifying the Hague Convention on Protection and children ... • of Children and Cooperation in respect of “The Committee urges the State Party to Intercountry Adoption, and securing that make every effort to strengthen family tracing programmes and also to plan for the domestic adoption procedures ensure that effective provision of alternative care for proper consents have been obtained and that separated children, with particular focus on the child’s birth identity is officially recorded unaccompanied children living in the streets of before an adoption takes place (see article 21, main towns...” (Sierra Leone CRC/C/15/Add.116, page 296); paras. 50 and 51) ensuring that any changes to a child’s identity, • such as name, nationality, parental rights of “Protection” custody, etc., are officially recorded; This includes securing appropriate temporary placement for children while their identity is re- enabling children to have access to the pro- • established. It should also involve explaining to the fessional files maintained on them (see art- children what is happening and why – ignorance icle 16, page 209). For example the Committee welcomed an Australian initiative: and uncertainty can unnecessarily add to chil- dren’s insecurity and lack of well-being. “The Committee notes the national inquiry carried out in 1997... which acknowledged “Speedily re-establishing his or the past policies whereby indigenous her identity” persons were deprived of their identity, The article emphasizes the particular impor- name, culture, language and family. In this respect, the Committee welcomes the tance of speed where children are concerned. activities undertaken by the State Party The “identity” of children is not just a mat- to assist family reunification and improve ter of parentage and culture of origin. As chil- access to records to help indigenous dren grow they may assume the identity of the persons trace their families.” (Australia family or culture in which they live to a point at CRC/C/15/Add.268, para. 31); which it would be a second deprivation of iden- ensuring that children in state care are encour- tity to remove them, and therefore unacceptable • aged to practise their religion, culture and lan- in terms of the child’s best interests. This is a guage of origin; particularly bitter fact for parents who have been amending nationality laws to allow for a “best illegally separated from their children, whether • interests of children” consideration in issues they were separated by the State or through relating to deportation or family reunifica- abduction by individuals. (It should be noted tion, and speeding up nationality and asylum that Argentina originally proposed the words “In procedures. particular, this obligation of the State includes restoring the child to his blood-relations to be The Manual on Human Rights Reporting, 1997, brought up”, but this proposal did not find accep- advises that appropriate assistance can include tance. [E/CN.4/1986/39, pp. 8 to 10; Detrick, “legislative measures, including in the civil and pp. 292 to 294]) penal areas – for instance to annul any adoption PRESERVATION OF IDENTITY 117

146 i c t l r e a Implementation Checklist • General measures of implementation Have appropriate general measures of implementation been taken in relation to article 8, including: identification and coordination of the responsible departments and agencies at ■ ■ the departments of justice, home all levels of government (article 8 is relevant to ation and the media, social welfare and affairs, foreign affairs, public communic )? education ■ ■ identification of relevant non-governmental organizations/civil society partners? ■ a comprehensive review to ensure that all legislation, policy and practice is ■ compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation ■ ■ which includes where necessary the identification of goals and indicators of progress? which does not affect any provisions which are more conducive to the rights of ■ ■ the child? ■ ■ which recognizes other relevant international standards? ■ ■ which involves where necessary international cooperation? (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole.) budgetary analysis and allocation of necessary resources? ■ ■ development of mechanisms for monitoring and evaluation? ■ ■ making the implications of article 8 widely known to adults and children? ■ ■ development of appropriate training and awareness-raising? ■ ■ Specific issues in implementing article 8 • Are children able to acquire the nationality of both parents? ■ ■ Are children able to acquire the nationality of the State in which they have lived for ■ ■ a significant period? ■ Are they able to live with their parents in their State of nationality? ■ ■ ■ Are questions of nationality and right to family reunification dealt with speedily? ■ ■ Are any changes of children’s name overseen by a judicial process which gives paramount consideration to the best interests of the child? ■ Are such changes fully recorded and the records accessible to the child? ■ Are children able to know and associate with members of their family of origin, so ■ ■ far as this is compatible with their best interests? Are accurate records kept about the identity, and any changes to the identity, of all ■ ■ children? Can children apply to have access to these records? ■ ■ Where parentage is in doubt, are children able to have it established by genetic ■ ■ testing (free of charge if necessary)? Implementation Handbook for the Convention on the Rights of the Child 118

147 i c t l r e a see page XIX How to use the checklist, ■ ■ Are other resources provided to trace missing children or missing family members (for example using tracing agencies or the media)? on on the Civil Aspects of International Has the State ratified the Hague Conventi ■ ■ Child Abduction and the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption? Are all cases dealt with expeditiously where illegal actions relating to children’s ■ ■ identity and family relations are alleged to have occurred? ■ ■ Is unlawful interference with children’s rights to preserve their identity an offence, subject to penalties? Do education, welfare and justice systems allow the child to enjoy his or her culture, ■ ■ religion and language of origin? ■ Where children are in the care of the State, are accurate records kept about their ■ family of origin and early childhood? Do such children have access to these records? ■ ■ ■ Do placements of children by the State endeavour, where compatible with the ■ child’s best interests, to give continuity to the child’s ethnic, religious, cultural and linguistic background? The Convention is indivisible and its articles interdependent. Article 8 Reminder : should not be considered in isolation. Particular regard should be paid to: The general principles the jurisdiction without discrimination on any ground Article 2: all rights to be recognized for each child in Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 6: right to life and maximum possible survival and development Article 12: respect for the child’s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child Closely related articles Articles whose implementation is related to that of article 8 include: Article 7: birth registration, right to name and nationality and to know and be cared for by parents Article 9: non-separation from parents except when necessary in best interests Article 10: international family reunification Article 11: protection from illicit transfer and non-return from abroad Article 16: protection from arbitrary interference in privacy, family and home Article 18: parents having joint responsibility Article 20: children deprived of family environment Article 21: adoption Article 22: refugee children Article 30: children of minorities or indigenous peoples Article 35: prevention of sale, trafficking and abduction of children PRESERVATION OF IDENTITY 119

148 UNICEF/90-0017/Tolmie

149 c l i t e r a Separation from parents ... Text of Article 9 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. 4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned. rticle 9 of the Convention on the from parents on that ground must be fair. It Rights of the Child enshrines two also affirms children’s rights to maintain rela- essential principles of children’s tions and contact with both parents, and places Summary rights: first, that children should a duty on the State to inform parent and child A not be separated from their parents unless it of the whereabouts of either if the State has is necessary for their best interests and, sec- caused their separation (for example by depor- ond, that all procedures to separate children tation or imprisonment). SEPARATION FROM PARENTS 121

150 Committee has suggested that research and The basic principles are enshrined in the 1959 Declaration of the Rights of the Child: “The awareness-campaigns on the effect of divorce on child, for the full and harmonious development of children should be supported, as well as counsel- his personality, needs love and understanding. He ling for parents: shall, wherever possible, grow up in the care and “The Committee is concerned at the high rate under the responsibility of his parents...” (article of divorce – considered among the highest in 6). These words are echoed and developed in the the world – in the State Party and its possible negative impact on children. The Committee Convention’s preamble: “the child... should grow is also concerned at the lack of research and up in a family environment, in an atmosphere of studies on the harmful consequences on happiness, love and understanding.” children of divorces and early marriages as Guidelines for Periodic Reports (Revised The well as the insufficient measures to create asks States to provide information on what 2005) public awareness on the detrimental effects of legal or administrative measures there are for divorce. i c t l r e a “... The Committee... recommends that the securing that the best interests and respect for the State Party undertake research and studies views of children are addressed when separation on the negative impact of family disruption from parents occurs, and for data on the “number on children as well as to continue with its of children without parental care disaggregated awareness-raising on this issue. Furthermore, by causes (i.e., due to armed conflict, poverty, the Committee recommends to the State Party abandonment as a result of discrimination etc.)” to improve counselling services for parents.” (CRC/C/58/Rev.1, pp. 6 and 12). (Maldives CRC/C/15/Add.91, paras. 17 and 37) The International Covenant on Civil and Political The article gives two examples of when it may be Rights provides “The family is the natural and necessary to separate children from one or both fundamental group unit of society and is enti- parents: first, when the parents have abused or tled to protection by society and the State” (art- neglected the child and, second, when parents icle 23(1), which is mirrored by article 10 of the live apart. A third example was suggested by the International Covenant on Social, Economic and United States of America representative during Cultural Rights) and: “No one shall be subjected the drafting of the Convention: “where there is to arbitrary or unlawful interference with his pri- a disagreement between parent(s) and child as to vacy, family, home or correspondence, nor to the child’s place of residence” (E/1982/12/Add.1, unlawful attacks on his honour and reputation. C, pp. 49 to 55; Detrick, p. 168). This suggestion Everyone has the right to the protection of the law was dropped on the grounds that an exhaustive against such interference or attacks” (article 17(1) list of reasons should not be attempted. The two and (2)). ■ examples are simply illustrations of cases when separation from parents may occur. The child’s right “not to be separated from parents against However, the third example given by the United their will, except when judged States of America does raise a profound diffi- ... necessary for the child’s best culty for some children – when parents agree between themselves where the child should live, interests” or how parental access should be organized, but The words “against their will” refer either to the when the child is unhappy with the arrangement. parents’ will or to the parents’ and child’s will Few States make provision for the child in such together; the grammar makes clear that it does circumstances, arguing that the State should not mean the child’s will alone. And, in one sense, not interfere in the private arrangements of par- the right of children to parental care is inevitably ents. But if the State accepts that it has a role as subject to the “will” of parents. Infants have no arbitrator when there are disputes between hus- power or ability to choose their caregivers. They band and wife, then it should accept its role as are dependent on their family, community and arbitrator when there is dispute between parent the State to make that choice for them. Moreover, and child – at least to the extent of establishing even if young children were in a position to judicial machinery for the child to make a case “choose” their parents, they could not force them for arbitration. Children may have good rea- to act as parents against their will. The State can sons for not wishing to live with parents. When seek to force parents to financially maintain their the Committee raised the “increasing number of children, but it cannot compel parents to care for street children” with the Russian Federation, it them appropriately. recommended that the State Party: Although States cannot be responsible if sepa- “... Promote and facilitate the reunification ration from parents is caused by divorce, the of street children with their parents and other Implementation Handbook for the Convention on the Rights of the Child 122

151 relatives or provide alternative care, taking “The Committee is concerned about the high rate of children placed in alternative care, into account the children’s own views...” often for financial reasons, many of them for (Russian Federation CRC/C/RUS/CO/3, para. 75) a long period of time, including very young On the other hand, children may want to live with children and children with disabilities... The parents even when the State thinks they are inad- Committee is also very concerned that not equate: enough efforts are made to return children (Hungary to their families as soon as possible.” “The Committee notes that children are often CRC/C/HUN/CO/2, para. 30) placed in alternative care without their views being adequately taken into account, and Article 23 of the Convention on the Rights of it is concerned that they authorities do not Persons with Disabilities, adopted by the General always adequately support the maintenance of Assembly in December 2006, repeats the pro- fundamental parent-child links... visions at the beginning of article 9(1) of the “The Committee... recommends that the i c t l r e Convention on the Rights of the Child, adding: State Party sufficiently take into account a children’s views in any decision regarding their “In no case shall a child be separated from par- placement in alternative care. Furthermore, it ents on the basis of a disability of either the child recommends that the parent-child relationship or one or both of the parents.” And to prevent not be negatively affected by placement in “concealment, abandonment, neglect and segre- (Finland CRC/C/15/Add 272, alternative care.” gation of children with disabilities” States must paras. 28 and 30) “undertake to provide early and comprehensive Other aspects of “unnecessary” separation from information, services and support to children parents include: with disabilities and their families.” State care. Article 20, on alternatives to fam- The Committee was also concerned at the ily life, provides for those children who will have number of Roma children in European institu- to be temporarily or permanently deprived of tions. Disproportionate numbers of children from their family environment if that is in their best ethnic minorities in care may suggest discrimi- interests. Some States adopt more prescriptive nation either in professional attitudes or family- criteria than others for determining what the support services. Gender may also be a factor, as best interests of children are. Where laws spe- was raised with Saint Kitts and Nevis: cify grounds for state care, they must be exam- “... It is recommended that the State Party ined carefully for discriminatory application. For undertake a study to assess the situation of boys within the family environment and their example, homelessness or poverty of the parents susceptibility to placement in alternative and/ should not be grounds in themselves for removal (Saint Kitts and Nevis CRC/C/15/ or foster care.” of the child, nor should a parent’s failure to send Add.104, para. 23) the child to school. If these deficiencies are caus- ing the child’s development to be impaired, then Failure to keep children in contact with their par- the State should put its resources into making ents may occur when the State makes arrang- good the deficiency while maintaining the child ments for them to live away from home, for in the family. For example, the Committee told example in institutions, specialist schools, street Nepal that it must abolish its legal provision children projects, foster care, “simple adoption”, allowing the poverty of parents as a legal ground etc. The loss of contact may be convenient to the for adoption (Nepal CRC/C/15/Add.261, para. caregiver, particularly when the child’s parents 54), and has noted with concern that a number appear to be hostile, disruptive or irrelevant to the of countries have children in state care because child’s progress; arguments are sometimes raised of the family’s poverty, such as Azerbaijan and that the child needs to “settle in” or that see- Hungary: ing parents upsets the child. However, evidence “The Committee is concerned about the strongly suggests that children are less likely to insufficient support for disadvantaged families be reunited with their parents if contact is not and the fact that, as a result, children are often maintained with them during the early months of unnecessarily separated from their parents... alternative care. Planning of placements should “The Committee recommends that the secure that contact can be easily maintained by State Party provide adequate support to the parents, who may be unable to travel dis- disadvantaged families, including counselling tances or visit at set times. The Committee raised and educational services, and ensure that such concerns with the Czech Republic: separation of children from their parents only takes place if necessary, in their best interest “... the Committee is concerned that... children (Azerbaijan and on precise legal grounds.” are often placed at significant distances from parents, who, in turn, may not be aware of CRC/C/AZE/CO/2, paras. 37 and 38) SEPARATION FROM PARENTS 123

152 stay with their hospitalized children free of their visiting rights; punitive measures such charge unless the child is less than 6 months of as limitation of phone calls or meetings with age... parents may also be used... Contacts with “The Committee... recommends that children parents are sometimes made conditional upon not be separated from their parents when they the behaviour of children in care.” (Czech are hospitalized.” (Croatia CRC/C/15/Add.243, Republic CRC/C/15/Add.201, para. 44) paras. 51 and 52) It urged Poland to: Parents in prisons. The imprisonment of par- “... Upgrade the capacity and skills of social ents, particularly of mothers of dependent young workers so that they are better able to children, is deeply problematic, because the child intervene and assist children in their own environment.” (Poland CRC/C/15/Add.194, is being punished along with the parent. While it para. 37) is argued that the punishment of offenders always has repercussions for innocent relatives, where Abandoned, runaway or unaccompanied i c t l r e children are concerned the effects can be par- a children living or working on the streets. ticularly catastrophic to them and costly to the Parents in extreme circumstances of poverty, State, both immediately, in terms of providing violence or armed conflict may abandon their for the children’s care, and long term, in terms of children, or children and parents may simply lose the social problems arising from early separation. contact with each other as a result of the pressure One solution is to accommodate young infants of such events; sometimes children leave home together with their mothers in prison; the other for the streets because of violence or exploitation is to find more constructive, non-custodial sanc- by their parents. The result is that most large cit- tions. Where possible, the latter course should ies in the world contain populations of children be adopted. It is arguable that article 3(1) of the living independently of their families. State pro- Convention requires courts when sentencing par- vision for these children should always give them ents to consider the best interests of affected chil- an opportunity of finding and being reunited with dren as “a primary consideration”. their parents and family. For some this may not Although babies tend to be unconcerned about be possible, but others will have their rights under where they live so long as they are with their article 9 breached by assumptions that they are mothers, difficulties may arise about when and if best provided for away from their original fam- to separate mother and child as the child grows ily. The Committee has encouraged state efforts older. The Committee has voiced concerns both in tracing these families: about accommodating children together with their “... concern is expressed, inter alia , at reports parents in prison and failures to keep imprisoned regarding difficulties and slow progress in parents and children in contact with each other, tracing separated families and children... “The Committee urges the State Party to as, for example, shown its comments to Nepal: make every effort to strengthen family tracing “The Committee is concerned about the programmes...” (Colombia CRC/C/15/Add.137, significant number of children who are living paras. 40 and 42) in adult prisons with their parents, often in poor conditions that fall short of international For further discussion of children on the streets, see standards... articles 2 and 20 (pages 30 and 286), and of tracing “The Committee recommends to the State programmes, see article 8 (pages 114 ). et seq. Party that it review the current practice of children living with their parents in prison, Children in hospitals. Parents may not be with a view to limiting the stay to instances allowed to visit or, where appropriate, remain in which it is in his/her best interest, and with their children in hospital. Again, this form to ensuring that the living conditions are of separation, more common in industrialized suitable for his/her needs for the harmonious than developing countries, is maintained primar- development of his/her personality. The ily for the convenience of the staff, although the Committee also recommends that children medical needs of the child patient may be cited. of parents in prison should be provided with In fact, it is now generally recognized that chil- adequate alternative care, for instance, within the extended family and be allowed regular dren’s recovery is greatly aided by having parents (Nepal CRC/C/15/ contact with their parents.” with them in hospital. Though hospital practice Add.261, paras. 51 and 52) is usually controlled by medical staff and hospi- tal managers, the State has a role in encouraging It recommends a systematic approach: child-friendly hospitals. The Committee raised “The Committee recommends that the State this matter with Croatia: Party develop and implement clear guidelines “The Committee is ... concerned about the on the placement of children with their parent information that mothers are not allowed to in prison (e.g. the age of the children, the Implementation Handbook for the Convention on the Rights of the Child 124

153 length of stay, contact with the outside world Sri Lankan services for these motherless chil- and movement in and outside the prison) in dren, but, in keeping with article 9: instances where this is considered to be in “To avoid the abandonment of children by the best interests of the child, and ensure mothers working abroad, the Committee that the living conditions, including health suggests that the State Party engage in care, in prisons are adequate for the child’s dialogue with receiving countries to ensure development, as required by article 27 of the an international agreement that permits Convention. It further recommends that the migrant workers to take their children abroad. State Party develop and implement adequate Ratification of the International Convention alternative care for children who are removed on the Rights of All Migrant Workers from prison, and such care is regularly and Members of Their Families should be supervised and allows the child to maintain (Sri Lanka CRC/C/15/Add.40, considered.” personal relations and direct contact with its paras. 16 and 33) (Mexico parent remaining in prison.” When Sri Lanka made its Second Report, the i c t l CRC/C/MEX/CO/3, para. 40) r e a Committee noted a new programme for children Article 2(2) protects children against “all forms of migrant workers, of discrimination or punishment on the basis of “... yet it is concerned that families of migrant the status, activities... of the child’s parents, legal workers receive little or no assistance with guardians or family members” (see page 30). their child-rearing responsibilities while they Although mothers have been singled out as being are working abroad... particularly crucial to the development of young “The Committee recommends that the State Party develop a comprehensive policy to children, States should recognize that the impris- support the families and caregivers of children onment of fathers can also be very detrimental, of migrant workers in their child-rearing depriving children of important role models and (Sri Lanka CRC/C/15/Add.207, responsibilities.” often causing the family to become impoverished. paras. 30 and 31) Removal of offending children Child offenders. The Committee was similarly concerned about from their families may be necessary in the best Saint Vincent and the Grenadines, where interests of the child, for example where judicial “the difficult domestic employment situation authorities are satisfied that the parents have con- has obliged many parents, and sometimes tributed to their child’s criminality. However, care both parents, to migrate, leaving children orders removing parental rights should not be a in the care of grandparents or under the part of the sentencing tariff for juvenile offending responsibility of an older child,” and should only occur when this is in the child’s and recommended that: best interests. Rule 18(2) of the United Nations “... the State Party... make every effort to Standard Minimum Rules for the Administration provide support to children within the context of Juvenile Justice, the “Beijing Rules”, states: of the family and consider, , means of inter alia “No juvenile shall be removed from parental improving employment prospects within the supervision, whether partly or entirely, unless (Saint Vincent and the State Party for parents.” the circumstances of his or her case make this Grenadines CRC/C/15/Add.184, paras. 30 and 31) necessary.” As regards the imprisonment of chil- Article 10 Immigration and deportation. dren for offending, and their consequent separa- deals with the limited rights of children to fam- tion from families, this should only occur as a ily reunification when they or their parents are last resort and in their best interests, as discussed (or wish to be) in different countries. When art- under article 37 (see page 556). icles 9 and 10 were being drafted the chairman Across the world Parents working abroad. of the Working Group drafting the Convention fathers, and increasingly mothers too, are forced made a declaration: “It is the understanding of to leave their children behind when they seek the Working Group that article 6 [now article 9] employment abroad. On Sri Lanka’s Initial Report of this Convention is intended to apply to sepa- the Committee expressed concern about rations that arise in domestic situations, whereas article 6 [now article 10] is intended to apply bis “... the situation of children whose mothers are working abroad, especially in Gulf to separations involving different countries and countries, leaving their children behind. Those relating to cases of family reunification. Article children (between 200,000 and 300,000) 6 bis [now 10] is not intended to affect the gen- often live in difficult circumstances and may eral right of States to establish and regulate their be subjected to different types of abuse or respective immigration laws in accordance with exploitation.” their international obligations.” The Chairman’s Its proposed solution was not, as might have declaration caused some concern. Three State representatives in the Working Group responded been expected, to recommend improvements to SEPARATION FROM PARENTS 125

154 by emphasizing that “international obligations” Despite this discussion, the Committee mem- included principles recognized by the interna- ber expressed the view that provisions on family tional community, particularly human rights and reunification under article 10 should be seen in children’s rights principles – including, of course, the light of article 9 (Canada CRC/C/SR.216, the principles of article 9. The representative of para. 84). The subject was not addressed when the Federal Republic of Germany “reserved the Canada submitted its Second Report. right to declare that silence in the face of the Other aspects of immigration have been raised chairman’s declaration did not mean agreement with other countries: with it” (E/CN.4/1989/48, pp. 32 to 37; Detrick, “The Committee remains concerned that... pp. 181 and 182). the national requirements and procedures for family reunification for refugee families, as Such a declaration is, in any event, no more than defined under the Convention relating to the a clarification of drafting intentions: though Status of Refugees of 1951, are complex and influential it does not carry legal force. The dec- i c t l r e a too long... laration was cited by Canada during one of that “The Committee recommends that the country’s oral sessions with the Committee. A State Party take all necessary measures... to Committee member commented in relation to the ease family reunification requirements and issues of immigration control and deportation: procedures.” (Germany CRC/C/15/Add.226, “Under article 9, States Parties should ensure paras. 54 and 55) that there would be no separation unless it was “The Committee is concerned that the best in the best interests of the child concerned and interests of the child are not adequately taken determined by competent authorities subject to into consideration in cases where foreign judicial review. Concern had been expressed at nationals who have children in Norway are how a child’s best interests were taken into con- permanently deported as a consequence of sideration when decisions to deport parents were having committed a serious criminal offence... made. Were family values taken into account by “The Committee urges the State Party to decision-makers? Article 9 also referred to the ensure that the best interests of the child need for judicial proceedings to give all interested are a primary consideration in the decisions taken regarding deportation of their parents.” parties the right and opportunity to be heard. It (Norway CRC/C/15/Add.263, paras. 21 and 22) was unclear when and how a child could make his or her views known and with what legal support. “The Committee is deeply concerned that the Article 12, paragraph 2, established the right of existing quotas for persons entering the Hong children to be heard in any administrative and Kong and Macau SARs [Special Administrative judicial proceedings.” (Canada CRC/C/SR.216, Regions] from the mainland and regulations para. 28) regarding the right of abode in the SARs contribute to the separation of children from The Canadian representative argued that: their parents and hinder family reunification.” “International law did not provide an express (China CRC/C/CHN/CO/2, para. 50) right to family reunification nor did the Japan made a declaration on deportations, about Convention recognize family reunification as an which the Committee expressed concern: “The express right... One issue of concern discussed in Government of Japan declares that paragraph 1 the United Nations Working Group on the draft of article 9 of the Convention on the Rights of convention in December 1988 had been whether the Child be interpreted not to apply to a case the provision in article 9 concerning non-separa- where a child is separated from his or her parents tion from parents would require States to amend as a result of deportation in accordance with its their immigration laws to avoid the separation of immigration law.” (CRC/C/2/Rev.8, p. 26; Japan children from their parents. The Working Group CRC/C/15/Add.90, para. 6) had requested that a statement should be included in the report on its deliberations to indicate that Armed conflict. The separation of parents and article 10 on family reunification was the govern- children may arise during armed conflict (article ing matter on that issue. It had been the Working 38) or when they have become refugees (article Group’s understanding that article 10 was not 22). The consequences of civil war or economic intended to affect the general right of States to breakdown can be devastating to the family unit. establish and regulate their respective immigra- Sometimes the state government can do little tion laws in accordance with their international about the upheavals caused by armed conflict, but obligations.” However, he did concede that inter- if the reins of power are in its hands, it has clear national treaties clearly recognized “the vital obligations towards children, as the Committee importance of family reunification”. (Canada informed Myanmar on its Initial Report: CRC/C/SR.216, paras. 47 and 55) Implementation Handbook for the Convention on the Rights of the Child 126

155 “While welcoming the recent peace The child’s right to have any agreements between the Government and a decision that separation from great majority of rebel armed groups in the his or her parents is in his or country, the Committee strongly recommends her best interests to: the State Party to prevent any occurrence of be undertaken by competent forced relocation, displacement and other • types of involuntary population movements authorities; which deeply affect families and the rights be subject to judicial review; • of children. The Committee also recommends be in accordance with applic- • that the State Party reinforce its central able law and procedures; tracing agency to favour family reunification.” give all interested parties (Myanmar CRC/C/15/Add.69, para. 40) • the opportunity to participate On Myanmar’s Second Report the Committee and make their views known i c continued to express deep concern about impact t l r e a of war on family life, particularly the “disinte- Removal of children from their parents without gration” of families from ethnic minorities iand justification is one of the gravest violations of the conscription of child soldiers by both sides rights the State can perpetrate against children. (Myanmar CRC/C/15/Add.237, paras. 42 and 66). At the same time, the State has a responsibility to protect children from parental harm. For this rea- Similar concerns were raised with Nepal, which son, the Convention requires that such actions be was recommended governed by clear and just procedures, as speci- “... to undertake effective measures for fied in article 9. The Committee is alert to States the reunification of separated families, having too casual an approach to parent-child by implementing programmes for the separation, for example, raising concerns with reinforcement of existing structures such as (Nepal CRC/15/Add.261, the extended family...” Lithuania about the large numbers of children para. 50) removed from parental care, recommending “... that the State Party take all possible Traditions or customs. The separation of chil- measures, including establishment of precise dren and parents because of custom perhaps most criteria for the limitation of parental rights, commonly occurs when a child is conceived out in order adequately to protect parental of wedlock. In the past, many mothers might rights and the parent-child relationship and abandon such children or would be forced to give thereby ensure that a child is not separated them up for adoption. This cultural pressure still from his or her parents against their will persists in some parts of the world – for example, except when competent authorities subject to judicial review determined, in accordance the Committee said to Sri Lanka: with applicable law and procedures, that “... The Committee also encourages the such separation is necessary for the best authorities to give full support to mothers of interests of the child. The Committee also children born out of wedlock wishing to keep recommends that the State Party take all their child.” (Sri Lanka CRC/C/15/Add.40, para. 34) necessary measures to ensure that both Custom may also affect the decisions that have to parents and children are given an opportunity to participate in the proceedings and make be made about where children live and how much their views known in accordance with article 9 contact they have with the non-resident parent fol- (Lithuania CRC/C/LTU/CO/2, of the Convention.” lowing parental separation. Such decisions ought para. 40) to be determined solely in accordance with the child’s best interests but sometimes are subject to “Competent authorities” tradition or religious doctrine – for example that The word “competent” relates to an authorized adulterous parents forfeit rights of access to chil- position rather than to ability; nonetheless such dren or that children must live with the paternal authorities must have skills to determine, on the family upon the death of the father. Under art- basis of the evidence, what is in the child’s best icles 18 children have the right to be cared for by interests. Such skills could be acquired through both parents, who share common responsibility formal training (for example, in psychology, for their upbringing, development and best inter- social work or children’s legal casework) or an ests. Decisions which automatically allocate these equivalent weight of experience (for example, responsibilities are contrary to the Convention if through being a community or religious arbitra- they are made without reference to the needs and tor). The Committee was concerned about the interests of the individual child concerned (see situation in Saint Vincent and the Grenadines, below, and article 18, page 235, for further dis- where “only the police and not the social ser- cussion). vices have the authority to remove a child from SEPARATION FROM PARENTS 127

156 a family situation in which the child is suffering “Subject to judicial review” abuse or neglect” noting that “this may add to the The phrase carries with it expectations about the trauma suffered by the child.” It recommended principles of natural justice and fair hearings. that social services be given the necessary legal These principles include that: authority to remove children (Saint Vincent and the judges or arbitrators have no personal • the Grenadines CRC/C/15/Add.184, paras. 38 interest in the case; and 39). On the other hand, the Committee has they are as well informed as possible about all expressed concern to other countries about the • the circumstances of the case; adequacy of social workers’ training and profes- sional conduct, for example to Slovenia: they provide reasons for their rulings; • “The Committee appreciates the work and all parties are heard; and the role of Social Work Centres in providing • administrative and other types of assistance to i c all parties hear the evidence (if necessary t l r e a • children and families, but is concerned at the through the provision of interpretation). lack of appropriate and effective measures to strengthen professional capacities of the staff While this part of article 9 was being drafted, of these centres, as well as the often lengthy country representatives repeatedly emphasized procedures applied.” the need to expedite the judicial process so that “The Committee recommends that the State the “separation period should be made as short as Party take all necessary steps to provide possible under national legislation” (E/1982/12/ ongoing training to the staff of Social Add.1, C, pp. 49 to 55; Detrick, p. 168). Although Work Centres and provide for efficient the need for speed is not explicitly mentioned in administrative, legal and practical measures to the article, it should be assumed to be a neces- ensure quality and efficiency of all activities of sary component of any judicial review in order these institutions.” (Slovenia CRC/C/15/Add.230, to secure compliance with article 8(2) (duty to paras. 30 and 31) “speedily” re-establish child’s identity, including The State should be able to demonstrate that the family ties). The Committee noted “the very long competent authorities are genuinely able to give duration of custodial disputes in Finland, which paramount consideration to the child’s best inter- may have a negative impact on children” (Finland ests, which presupposes a degree of f lexibility CRC/C/15/Add.272, para. 26). in this decision-making. Any inflexible dogma The article makes no mention of privacy of defining “best interests”, for example stating the proceedings. However article 14(1) of the that children ought to be with their fathers or International Covenant on Civil and Political mothers, should be regarded as potentially dis- Rights provides that the public may be excluded criminatory and in breach of the Convention. from judicial hearings “when the interest of It is true to say that article 6 of the Declaration the private lives of the parties so requires” of the Rights of the Child, the precursor of the and that judgements of hearings should gener- Convention on the Rights of the Child, did make ally be made public “except where the interest a statement in favour of keeping, save in excep- of juvenile persons otherwise requires or the tional circumstances, children of “tender years” proceedings concern matrimonial disputes or with their mothers. However, this bias towards the guardianship of children”. Article 3 of the giving mothers custody young children, though Convention on the Rights of the Child, relat- common in many countries and an important ing to the best interests of the child and article protection in very patriarchal societies, does 16 (right to privacy) suggest an assumption that not find expression in the Convention. The judicial hearings under article 9 should be held Committee expressed this view to a number of in private. Muslim countries who award custody of young children to mothers and older children to fathers, In addition rule 3(2) of the United Nations for example Pakistan: Standard Minimum Rules for the Administration “The Committee is concerned that the State of Juvenile Justice, the “Beijing Rules”, extends Party’s legislation uses age limits, instead the Rules’ scope to care and welfare proceedings: of the best interests of the child, as criteria “Efforts shall be made to extend the principles in determining custody in cases of divorce. embodied in the Rules to all juveniles who are Such permission, in addition to implying dealt with in welfare and care proceedings.” The that siblings can be separated, discriminates “Beijing Rules” calls for fair hearings with suf- between the sexes and fails to acknowledge ficient flexibility to respond to the varying spe- the child’s right to express her/his views and cial needs of the children concerned, conducted have them taken into account.” (Pakistan “in an atmosphere of understanding”. The Rules CRC/C/15/Add.217, para. 44) Implementation Handbook for the Convention on the Rights of the Child 128

157 stresses the need for privacy, speed, the child’s in the proceedings and make their rights to representation and to the presence of views known” parents, appeal procedures, powers to discontinue This aspect of a proper judicial review – the need proceedings, good record keeping and research- to hear from all relevant parties – is given special based policy. emphasis within the Convention for good reasons. Some countries entered reservations to article 9 It reminds States that both parents must be heard, on the grounds that their social work authorities even when one parent has not had primary care of had powers to take children into care without a the child (for example in a case of child neglect court hearing or judicial review. This is not com- by the child’s mother, even a non-resident father patible with the rights of the child. For example, of the child should be given an opportunity to the inclusion of care and welfare proceedings in show he is able and willing to look after the child) or when one parent is out of the country. It also the “Beijing Rules” stresses the point that remov- i c t l r enables other “interested parties” to participate ing children from their parents is as serious a e a in the proceedings – for example members of the step as depriving them of their liberty, and mer- child’s extended family, or professionals with spe- its a fair hearing conducted under the rules of cialist knowledge of the child. “Interested parties” natural justice. The Committee has systemati- is undefined within the Convention, so that inter- cally encouraged the withdrawal of all such res- pretation is left to domestic law or the judge of the ervations. Not only should such hearings operate case; however, it should be assumed that the wid- under due process, the courts should be special- est possible interpretation is needed, since a sound ized and well-funded, as the Committee recom- decision on best interests of the child is dependent mended to Nicaragua: on having the fullest possible information. “... that the State Party... establish specialized family courts with trained judges and other The child, in particular, should not be forgotten. professionals involved, and ensure that family He or she is clearly the most “interested party” law practice is accessible to everybody and that involved in the case. Article 12(2) provides that family law procedures are conducted without children specifically be given opportunities to be (Nicaragua CRC/C/15/Add.265, undue delay.” heard directly or through a representative “in any para. 37) judicial and administrative proceedings affect- And, expressing its deep concern to Lebanon ing the child”. Proceedings under article 9 clearly “... at the large number of children placed in affect the child. Article 12(2) does not specify institutions... without judicial procedure”, when the child should be heard directly and when through a representative, but given the general it recommended that the State Party right under 12(1) for children to “express those “... take effective measures to implement fully views freely in all matters affecting the child”, it the legislation relating to alternative care of should be assumed that wherever children wish children to ensure that a child is not separated to speak directly to the adjudicators, this should from his or her parents against its will, except be arranged, but that, in addition, where chil- when competent authorities subject to judicial dren are not able to represent their views ade- review and procedures determine that such separation is necessary for the best interests of quately (through incapacity or because they need (Lebanon CRC/C/15/Add.169, paras. 36 the child.” an advocate in an adversarial system), appro- and 37) priate arrangements should be made. However States must recognize that appointing a person “In accordance with applicable law to represent the child’s best interests is not the and procedures” same as children being given “an opportunity to again stress the need for legislation These words ... make their views known” (article 9(2)) or “to governing any procedure where the child is sepa- be heard” (article 12(2)). Professional opinion as rated from parents against their will, whether it is to the child’s best interests may sometimes con- the State intervening to remove the child or one flict with the child’s own view of what is best. In of the parents seeking custody of the child. such circumstances, States are obliged under the If, however, laws leave criteria for separation Convention to ensure that the child’s views are open to judicial discretion so that it is entirely up also heard. to the judge to decide what is in the best interests The Committee congratulated Sweden on its of the child, then the State must be satisfied that “remarkable efforts” to ensure children’s views judges exercise this discretion objectively. are heard, but nonetheless remained concerned “... all interested parties shall be that “some children and young persons do not feel they have any real influence in matters given an opportunity to participate SEPARATION FROM PARENTS 129

158 principles of the best interests of the child and concerning their life in society”. It recommended (Republic of respect for the views of the child.“ that Sweden Korea CRC/C/15/Add.51, para. 8) “... Ensure that administrative or other decisions relevant to children contain On its Second Report, the Republic of Korea was information on how the views of the children encouraged were solicited, on the degree to which the “... to expedite the process of reforming the views of children were adopted and why... Civil Act so that both children and parents [and] ... consider providing children in very are guaranteed the right to maintain contact conflicting custody and visitation disputes with (Republic of Korea CRC/C/15/ with each other...” (Sweden CRC/C/15/ appropriate assistance.” Add.197, para. 10) Add.248, paras. 23 and 24) Too often, children lose the chance to maintain The Committee also expressed concern to Haiti contact with the non-residential parent because of “... at the high number of children who are i c t l the needs of the residential parent (for example to r e a separated from their parents... [and] ... at live at a distance from the other parent) or because the fact that the views of the child are not of the parents’ acrimonious relationship. The taken into consideration when such decision is Committee raised its concerns in this respect with taken.” Antigua and Barbuda and with Liechtenstein: It recommended that “The Committee is concerned that currently, “... child is given an opportunity to participate no legal provisions exist to protect the right of in the proceedings and that he or she can a separated parent and/or child to remain in (Haiti CRC/C/15/ make his or her views known.” contact with each other. Add.202, paras. 38 and 39) “The Committee recommends that the State Party review existing legislation to States sometimes specify an age at which ensure adequate protection of the right of children themselves can determine decisions a separated parent and/or child, with due about custody and access (that is, residence and consideration given to the best interests of the contact), usually with a caveat that the child’s (Antigua and Barbuda CRC/C/15/Add.247, child.” decision can be overridden in exceptional cir- paras. 39 and 40) cumstances if the child’s welfare might actively be harmed by his or her choice. The age appears “The Committee is concerned that the father of a child born out of wedlock has no to range from 7 to 16. Such provisions are not standing to claim custody and that custody is contrary to the Convention. However, provisions automatically given to the mother... that specify an age at which the child’s views “The Committee recommends that the should be taken into account are questionable, State Party amend its legislation to provide since the expressed views of children of all ages fathers the opportunity to request custody should be considered under article 12 (see page of their children born out of wedlock, where 149). possible as a joint custody with the mother.” (Liechtenstein CRC/C/LIE/CO/2, paras. 18 and 19) The child’s right “to maintain Courts may correctly refuse to enforce access if personal relations and direct this is likely to have adverse consequences for the contact with both parents on a child. But while legislation often decrees that the regular basis” unless contrary child’s best interests shall be paramount in such to best interests decisions, the law does not always make clear that these best interests are generally interpreted This right reflects the principle of article 18 that as meaning regular contact with both parents. “both parents have common responsibilities for Moreover, States could often put more resources the upbringing and development of the child” (see into providing practical assistance to children page 235). States vary as to the care they take in whose parents are in conf lict, for example by pro- protecting this right of children. The Republic of viding neutral meeting places or the supervision Korea entered a reservation to article 9(3), but of access. told the Committee that it was considering with- drawing the reservation (CRC/C/2/Rev.8, p. 36; The right of family members, Republic of Korea CRC/C/SR.276, para. 14). The and specifically parents and Committee nonetheless informed the Republic of children, to be given on Korea that this reservation raised questions about request the essential informa- its tion concerning the where- “...compatibility with the principles and abouts of a parent or child who provisions of the Convention, including the Implementation Handbook for the Convention on the Rights of the Child 130

159 other relevant details (for example when they can has been separated because of see the family member or what their legal rights an action initiated by the State are). The qualification that the information need (for example, detention, only be provided “upon request” was specifically imprisonment, exile or death sought by some of the State representatives in from any cause in custody), the drafting group, although it is hard to see how unless the provision of infor- the qualification enhances children’s rights (E/ mation would be detrimental CN.4/1983/62, pp. 4 to 8; Detrick, p. 175). Children to the well-being of the child and parents should clearly be informed about each other’s whereabouts (unless such information is A failure to ensure that parents are told where detrimental to the child’s well-being) whether or their children have been detained, or that chil- not they have made a request for the information. dren are told of the whereabouts of their parents, The Committee made these points to the People’s i c t l seems to be an obvious abuse of human rights r e a Democratic Republic of Korea: and reflects international rules regarding the treatment of prisoners (see article 40, page 601). “The Committee is concerned at the information that the whereabouts of parents Circumstances in which provision of information may not be provided to children if the parents would be detrimental to the child are likely to be have been sentence to reform through labour rare and exceptional. The presumption should be or have been punished by death for a crime. that children will be more damaged by ignorance “The Committee recommends that the State of their parents’ whereabouts (and equally, that Party take all necessary measures in line with imprisoned children will be more damaged by article 9, paragraph 3, of the Convention their parents not being told where they are) than to keep children informed about the by the discovery of the absent family member’s whereabouts of their parents, and to fully fate, however shocking. Oman has entered a res- implement their right to maintain personal ervation to this paragraph stating that “or to pub- relations and direct contact with both parents lic safety” should be added to the words “unless (People’s Democratic on a regular basis.” the provision of information would be detrimen- Republic of Korea, CRC/C/15/Add.239, paras. 42 tal to the well-being of the child” (CRC/C/2/ and 43) Rev.8, p. 34). But even when States are troubled by extreme forms of terrorism, it is difficult to The right for requests for such imagine how telling a child the whereabouts of information not to entail his or her parent, or vice versa, could jeopardize “adverse consequences for public safety. The United Nations Rules for the the person(s) concerned” Protection of Juveniles Deprived of their Liberty states that parents and relatives must be informed This requirement must protect both the person without delay of the fact of the child’s detention, seeking the information and the person to whom reasons for it and other details. the information refers. Again, these are mat- ters of human rights, only needing to be con- The wording refers only to “essential informa- firmed because of documented cases of abuse. tion concerning the whereabouts”, which might be One example where requests for information by insufficient information in some cases – certainly the State might unwittingly entail adverse con- in the case of death. States should also ensure that sequences is when inquiries are made about the family members are given essential information relatives of children seeking asylum, causing as to cause – why the person has been impris- oned, deported, died in custody and so forth – and unintended repercussions for those relatives. Reporting guidelines: see Guidelines for Periodic Reports (Revised 2005) (CRC/C/58/Rev.1), Appendix 3, page 699. SEPARATION FROM PARENTS 131

160 i c t l r e a Implementation Checklist General measures of implementation • Have appropriate general measures of implementation been taken in relation to article 9, including: identification and coordination of the responsible departments and agencies at all ■ ■ levels of government (article 9 is relevant to the departments of justice (criminal and civil), social welfare, health and education )? ■ ■ identification of relevant non-governmental organizations/civil society partners? ■ a comprehensive review to ensure that all legislation, policy and practice is ■ compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation which includes where necessary the identification of goals and indicators of ■ ■ progress? ■ which does not affect any provisions which are more conducive to the rights of ■ the child? ■ ■ which recognizes other relevant international standards? ■ ■ which involves where necessary international cooperation? (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole.) budgetary analysis and allocation of necessary resources? ■ ■ ■ ■ development of mechanisms for monitoring and evaluation? ■ ■ making the implications of article 9 widely known to adults and children? development of appropriate training and awareness-raising (in relation to article 9 ■ ■ judiciary, lawyers, social workers, hospital staff likely to include the training of the justice and immigration systems and those working in the juvenile )? • Specific issues in implementing article 9 ■ ■ Does the State ensure that parents and children are separated against their will by State authorities only when it is necessary to protect the best interests of the child? ■ ■ Does domestic law enable judicial intervention on behalf of the child when there is disagreement between the parents, or between the parents and the child as to the child’s place of residence or as to access to the child by a parent? ■ Does the State ensure that contact between parents and children in institutions ■ (such as children’s homes or boarding schools) or placements (such as foster care or respite care for children with disabilities) is maintained to the maximum extent compatible with the child’s best interests? ■ Do programmes for those children living or working on the streets respect the ■ child’s right not to be separated from his or her parents unless it is necessary for his or her best interests? Are hospitals required or encouraged to make arrangements for parents to be with ■ ■ their children in hospital whenever practicable? Implementation Handbook for the Convention on the Rights of the Child 132

161 i c t l r e a see page XIX How to use the checklist, ■ Does the criminal justice system have regard for the need for mothers not to be ■ separated from their babies? Does the criminal justice system have regard for the need for parents not to be ■ ■ separated from their children? Does the criminal justice system ensure that juvenile offenders are not separated ■ ■ from their parents except where competent authorities have determined it is necessary for the best interests of the offender, or as a last resort for the shortest appropriate period? ■ Do laws and procedures governing the deporting of parents under immigration law ■ pay regard to the child’s right not to be separated from his or her parents unless necessary for his or her best interests? Do provisions for the family reunification of immigrants and refugees pay regard ■ ■ to the child’s rights not to be separated from parents unless necessary for his or her best interests? ■ ■ In times of armed conflict, are forced relocations of civilian populations avoided and all measures adopted for tracing and reuniting children and parents separated by these events? Are measures taken by the State (for example through public education campaigns) ■ ■ to combat traditional customs that separate parents and children unnecessarily? ■ Does the State provide practical or psychological assistance to families in order to ■ prevent unnecessary separation of parents and children? ■ ■ Are all laws specifying the grounds justifying the State in separating children from parents free from discrimination (for example, in relation to families living in poverty or ethnic minority families)? Are all laws specifying the grounds justifying separation from parents free from ■ ■ dogma as to children’s best interests (for example that children are better off with their fathers than their mothers or vice versa)? ■ ■ Are all decisions that hold separation from parents necessary for the child’s best interests made by authorities competent to determine what these best interests are? ■ ■ Do these authorities have access to all relevant information in this determination? Are these decisions subject to judicial review? ■ ■ ■ ■ Are these cases dealt with speedily? Are children’s rights to privacy safeguarded in such cases? ■ ■ Are all relevant people, including the child, able to participate and be heard by ■ ■ those determining these cases? ■ ■ Are there no age limits on the right of the child to participate or be heard? Are the child’s views heard if he or she disagrees with the professionals reporting to ■ ■ the court on his or her best interests? ■ ■ Are the proceedings impartial and fair? ■ ■ Does the law enshrine the principle that children should, wherever possible, have regular contact with both their parents? SEPARATION FROM PARENTS 133

162 i c t l r e a see page XIX How to use the checklist, ■ ■ Is practical assistance given to ensure contact is maintained in cases where parents are in conflict? Does the State provide practical assistance in discovering the whereabouts of ■ ■ parents and children who, for whatever reason, have become separated? ■ Unless detrimental to children’s well-being, are children and parents (and other ■ family members, if appropriate) always informed of the whereabouts of the other in circumstances where they have become separated because of an action of the State prisonment, exile or death)? (for example, detention, im ■ ■ Are those requesting such information protected from adverse consequences? The Convention is indivisible and its articles are interdependent. Reminder : Article 9 should not be considered in isolation. Particular regard should be paid to: The general principles Article 2: all rights to be recognized for each child in the jurisdiction without discrimination on any ground Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 6: right to life and maximum possible survival and development Article 12: respect for the child’s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child Closely related articles Articles whose implementation is related to that of article 9 include: Article 7: right to know and be cared for by parents Article 8: right to preservation of identity, including family relations Article 10: international family reunification Article 11: protection from illicit transfer and non-return Article 16: protection from arbitrary interference in privacy, family and home Article 18: parents having joint responsibility Article 20: children deprived of their family environment Article 21: adoption Article 22: refugee children Article 24: health services Article 25: periodic review of treatment when placed by the State away from families Article 35: prevention of sale, trafficking and abduction of children Article 37: deprivation of liberty Article 40: administration of juvenile justice Implementation Handbook for the Convention on the Rights of the Child 134

163 c l i t e r Entering a or leaving countries for family reunification ... Text of Article 10 1. In accordance with the obligations of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by the States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family. 2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are , public health or morals (ordre public) necessary to protect the national security, public order or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention. rticle 10 of the Convention on the reunification rather than asylum) or children of Rights of the Child is concerned separated parents living in different countries.. with rights to “family reunification” While family unity is a fundamental principle of children who are, or whose par- A Summary of the Convention, the wording of article 10 is ents are, involved in entering or leaving a coun- notably weaker than that of article 9 in so far as try. The article requires States to deal with family the right to family reunification is not expressly reunification “in a positive, humane and expedi- guaranteed (even though article 10 makes an tious manner” and to allow parents and children express reference to article 9(1)). The tentative to visit each other if they live in different States. wording of article 10 reflects concerns about Most families affected by article 10 are either so- immigration control – a cause of great anxiety to called “economic migrants”, refugees (although it richer nations, haunted by the spectre of mass should be noted that parents or children of refu- gees may seek entry for the purposes of family migrations of the world’s poor. ENTERING OR LEAVING COUNTRIES FOR FAMILY REUNIFICATION 135

164 ommended that Japan withdraws this declaration The article does not directly address the right of (Japan CRC/C/15/Add.231, para. 9). children or their parents to “remain” for the pur- poses of family reunification, taking in the whole Because many richer nations have increasingly question of the deportation of parents. However, in recent decades closed their borders to labour by implication, since a deported parent would at migration, family reunion has become the main once be in a position to wish to re-enter the coun- legal entitlement for the settlement of immigrants. try, these cases can be assumed to be covered by This, in turn, has led to increasingly restrictive this article (as well as by article 9, see page 121). conditions being placed on the right to family reunification. Some countries require nationality Along with encouraging States to ratify treaties status before such rights can be secured. Many relating to refugees (see article 22, page 305), the countries now require applicants to prove that Committee recommends that countries ratify the there are sufficient resources to support the International Convention on the Protection of the i c t immigrant’s family members without recourse to l r Rights of All Migrant Workers and Members of e a public funds. Other countries have stricter condi- Their Families. The Convention came into force tions for foreigners who themselves entered the in July 2003 (see box for countries that have country for family reunion when they were chil- ratified, as at July 2007). Its article 44 provides dren. Not all States recognize 16- to 18-year-olds that contracting States should take measures as children and some countries require children “which they consider appropriate and which are to be “dependent”, or the exclusive responsibil- within their powers to facilitate the reunion of ity of one parent if the parents are separated. The migrant workers with their spouses, or with any Committee expressed concern, for example, about persons having a relationship with them, which in Austria’s “length of family reunification proce- accordance with the law is the equivalent of mar- dures and at the fact that it is restricted through riage, as well as their dependent or single chil- the quota system and the age limit set for children dren.” Article 22 protects migrant workers from at 15 years.” (Austria CRC/C/15/Add.251, para. mass expulsion; article 14 protects them from 35) And, while welcoming the fact that Estonia’s “arbitrary or unlawful interference with his or National Court had found immigration quotas ■ her privacy, family, home...” unconstitutional, the Committee remained con- cerned that Estonian law: Right of child or parent to have “... does not guarantee family reunification any applications “to enter or because it requires a dependent refugee leave a State Party for the spouse and dependent children outside Estonia purpose of family reunifica- to meet the criteria of the 1951 Refugee tion” dealt with “in a positive, Convention even after the principal applicant humane and expeditious has met the criteria. Further, the Committee is concerned that there are no legal provisions manner” by the States Parties which make it possible for family members to reunite with a child who has been recognized as “Positive” a refugee.” (Estonia CRC/C/15/Add.196, para. 34) When drafting this article some State represen- The United Kingdom entered a blanket reserva- tatives were concerned about the interpretation tion to enable it to apply immigration legislation of the word “positive”. Two alternatives were as it deems necessary (CRC/C/2/Rev.8, p. 42). proposed – “objective” and “favourable” – and The Committee expressed concern about this res- were rejected. “Favourable” was thought to con- ervation, commenting that: tain too much of an element of prejudgement, “... the reservation relating to the application whereas “positive”, though stronger than “objec- of the Nationality and Immigration Act tive”, did not assume that the State must agree does not appear to be compatible with the to the application (E/CN.4/l989/48, pp. 37 to 40; principles and provisions of the Convention, Detrick, p. 206). Nonetheless, Japan took pains including those of its articles 2,3,9 and 10”. to enter a declaration that: “The Government of The Committee suggested that the United Japan declares further that the obligation to deal Kingdom review its nationality and immigra- with applications to enter or leave a State Party tion laws and procedures to ensure their confor- for the purpose of family reunification ‘in a posi- mity with the principles and provisions of the tive, humane and expeditious manner’ provided Convention (United Kingdom CRC/C/15/Add.34, for in paragraph 1 of article 10 of the Convention paras. 7 and 29). These concerns were reiter- on the Rights of the Child be interpreted not to ated in its observations on the United Kingdom’s affect the outcome of such applications.” (CRC/ Second Report (CRC/C/15/Add.188, para. 6). C/2/Rev.8, p. 26) The Committee has twice rec- Implementation Handbook for the Convention on the Rights of the Child 136

165 e Protection of the Rights International Convention on th of All Migrant Workers and Members of Their Families Ky rg y z st a n The following States have ratified or acceded to the Convention (as at July 2007): Lesotho Albania Libyan Arab Jamahiriya Algeria Mali Argentina Mauritania Azerbaijan Mexico Belize Morocco Bolivia i c t l r e Nicaragua a Bosnia and Herzegovina Peru Burkina Faso Philippines Cape Verde Senegal Chile Seychelles Colombia Sri Lanka Ecuador Syrian Arab Repulic Egypt Taji k ist a n El Salvador Timor-Leste Ghana Tu r ke y Guatemala Uganda Guinea Honduras Uruguay Liechtenstein “reserves the right to apply the Report, it was concerned that the best interests of Liechtenstein legislation according to which children were not always taken into account when family reunification for certain categories of deportation decisions were made: foreigners is not guaranteed” (CRC/C/2/Rev.8, “The Committee is ... concerned that despite p. 28); this reservation was still in place at the the State Party’s positive efforts, when examination of Liechtenstein’s Second Report, decisions to deport foreigners convicted of to the Committee’s regret (CRC/C/LIE/CO/2, a criminal offence are taken, professional para. 4), and Singapore reserved the right to opinions on the impact of such decisions upon apply its legislation relating to entry and stay in the children of the deported persons are Singapore “as it may deem necessary from time not systematically referred to and taken into to time” (CRC/C/2/Rev.8, p. 37), also a matter of consideration. concern to the Committee (Singapore CRC/C/15/ “The Committee... recommends that the Add.220, para. 6). State Party review the process through As discussed in the summary, the provisions of which deportation decisions are made to this article should apply to children whose parents ensure that where deportation will mean the are under threat of deportation. The Committee separation of a child from his or her parent, also expressed concern that in Norway: the best interests of the child are taken into “... the police may not be instructed to delay consideration.” (Norway CRC/C/15/Add.126, the expulsion of some members of the family paras. 30 and 31) in order to ensure that the whole family remains together and that undue strain on the When it examined Norway’s Third Report, the children is avoided. Committee reiterated this concern and again rec- “... it is suggested that solutions should also be ommended Norway to sought to avoid expulsions causing separation (Norway CRC/C/15/Add.23, paras. 11 of families.” “... ensure that the best interests of the child and 24) are a primary consideration in the decisions taken regarding deportation of their parents.” While the Committee commended Norway’s ‘positive’ efforts when responding to its Second (Norway CRC/C15/Add.263, para. 22) ENTERING OR LEAVING COUNTRIES FOR FAMILY REUNIFICATION 137

166 indiscriminate effects of generalized violence, “Humane” such risks must be given full attention The word “humane” qualifies and strengthens the and balanced against other rights-based word “positive”. For example, in cases where par- considerations, including the consequences ents are illegal immigrants but their children have of further separation. In this context, it must acquired the right to the host country’s nation- be recalled that the survival of the child is of ality, it is more humane to allow the family to paramount importance and a precondition for remain in the country than to deport the parents the enjoyment of any other rights. – even though in both cases the family remains “Whenever family reunification in the country together. of origin is not possible, irrespective of whether this is due to legal obstacles to return The Committee raised concerns with Australia or whether the best-interests-based balancing about discrimination against children travelling test has decided against return, the obligations without documents: under articles 9 and 10 of the Convention i c t l r e “... that children who are granted a temporary come into effect and should govern the host a protection visa (those arriving in the country country’s decisions on family reunification without any travel document) do not have the therein.” (Committee on the Rights of the Child, right to family reunification... General Comment No. 6, 2005, CRC/GC/2005/6, “The Committee recommends that the paras. 82 and 83) State Party... consider permitting family “Expeditious” reunification in cases where children or their All judicial and administrative processes con- family members are holders of temporary protection or temporary humanitarian visas...” cerning children need to be pursued as quickly as (Australia CRC/C/15/Add.268, paras. 63 and 64) possible. Delay and uncertainty can be extremely prejudicial to children’s healthy development. The procedure for making the decision must There is a sense in which any period of time is also be humane. It is essential that immigration significantly ‘longer’ in the life of a child than processes respect the dignity of the applicants, in that of an adult. In immigration cases delays including the child’s dignity. Treatment in deten- can ruin children’s chances – for example some tion centres can often be inhumane, as can the children pass the key age of 18 while still waiting investigations by the authorities to authenticate for their application to be heard. The Committee the applications. The Committee has stressed expressed concern to Finland: the link between article 10 and article 37 (depri- “While the Committee welcomes the vation of liberty), pointing out that even where considerable reduction in the time required for applicant children are housed in comfortable sur- processing the applications of unaccompanied roundings, such as hotels, they are still deprived children, it is still concerned that the time of their liberty and their particular needs are not needed for family reunification remains too necessarily taken into account (see page 556). (Finland CRC/C/15/Add.273, para. 49) long.” Children should not be subjected to investigations And it raised concern about delays in family that could harm their health (such as bone X-rays reunification with Spain, to identify their age) or psychological well-being (such as traumatizing interrogations), nor should “... in particular for the issuance of the necessary visa and travel documents by the they be subjected to medical tests without their, (Spain CRC/15/ Ministry of Foreign Affairs.” or as appropriate, their parents’ consent. Add.185, para. 34) The Committee’s General Comment No. 6 on In its Concluding Observations on Canada’s “Treatment of unaccompanied and separated chil- Initial Report, the Committee expressed concern dren outside their country of origin” emphasizes about the position of refugee and immigrant chil- that securing family reunion should not endanger dren: refugee children: “The Committee recognizes the efforts made “Family reunification in the country of origin is by Canada for many years in accepting a not in the best interests of the child and should large number of refugees and immigrants. therefore not be pursued where there is a Nevertheless, the Committee regrets that the ‘reasonable risk’ that such a return would lead principles of non-discrimination, of the best to the violation of fundamental human rights interests of the child and of the respect for of the child... the granting of refugee status the views of the child have not always been constitutes a legally binding obstacle to return given adequate weight by administrative to the country of origin and, consequently, bodies dealing with the situation of refugee to family reunification therein. Where the or immigrant children. It is particularly worried circumstances in the country of origin contain ... by the insufficient measures aimed at lower level risks and there is concern, for example, of the child being affected by the family reunification with a view to ensuring Implementation Handbook for the Convention on the Rights of the Child 138

167 that it is dealt with in a positive, humane regulation” relates to provisions that penal- and expeditious manner. The Committee ize companies for allowing passengers to travel specifically regrets the delays in dealing with without proper visas or entry authorizations.) On reunification of the family in cases where Germany’s Second Report the Committee was one or more members of the family have still concerned that its family reunification pro- been considered eligible for refugee status cedures were “complex and too long” (Germany in Canada as well as cases where refugee CRC/C/15/Add.226, para. 54). or immigrant children born in Canada may be separated from their parents facing a Right for such applications deportation order.” to entail “no adverse The Committee recommended: consequences” for “... that the State Party pay particular any member of the family attention to... the general principles of the i c t l Convention, in particular the best interests r e a This right relates to those countries where appli- of the child and respect for his or her views, cations to enter or leave have resulted in the in all matters relating to the protection of applicant or the applicant’s family being perse- refugee and immigrant children, including cuted or discriminated against. Such treatment is in deportation proceedings. The Committee suggests that every feasible measure be taken obviously a breach of human rights in all circum- to facilitate and speed up the reunification stances. The act of making an application should of the family in cases where one or more never put an applicant in jeopardy, even though members of the family have been considered the application may be turned down. eligible for refugee status in Canada. Solutions However, where asylum seeking occurs, the should also be sought to avoid expulsions causing the separation of families, in the spirit receiving State may unwittingly entail adverse of article 9 of the Convention...” (Canada consequences for the child or the child’s family CRC/C/15/Add.37, paras. 13 and 24) by making incautious enquiries; therefore care must be taken not to breach confidentiality in a while the Committee noted that Canada, on its Second Report, had made some improvements hazardous manner (see article 22, page 316). to the situation of children in immigration pro- cedures, its concerns about family reunifica- Right of child (save in tion had not be met (Canada CRC/C/15/Add.215, exceptional circumstances) to para. 46; see also page 126). maintain, on a regular basis, The Committee also expressed concern over personal relations and direct Germany’s procedures and treatment of foreign contacts with both parents children in need of family reunification: where the parents reside “The Committee remains concerned about the in different States extent to which account is taken of the special needs and rights of children in asylum-seeking The Hague Convention on the Civil Aspects of and refugee situations. Procedures governing International Child Abduction (1980) assists with asylum-seeking children, particularly those realizing this right because it allows parents to relating to family reunification, expulsion enforce court orders for access (contact or visita- of children to safe third countries and the tion rights) in the Hague Convention States (see ‘airport regulation’ give cause for concern. article 11, page 144). But not all parents with In this respect the Committee notes that the access problems in foreign countries have court guarantees provided for in the Convention, in orders, and only around a third of the world’s particular in its articles 2, 3, 12, 22 and 37(d) do not appear to be complied with, while countries have ratified or acceded to the Hague insufficient attention seems to have been Convention. This right of the child should ensure ensured to the implementation of articles 9 that States give favourable consideration both to and 10 of the Convention... applications for access and applications for entry “The Committee is of the opinion that the and exit in order to exercise access. issue of asylum-seeking and refugee children deserves further study with a view to its It is important not to assume that children with reform in the light of the Convention and of refugee status will never be able to return to their the concerns expressed during the discussion State of origin for family visits. Organizing a with the Committee ..” safe temporary visit may be possible. Evidence of children returning home for the purpose of tem- And the Committee also encouraged the involve- porary family reunification should not prejudice ment of children in these proceedings (Germany their refugee status. CRC/C/15/Add.43, paras. 19, 33 and 29). (“Airport ENTERING OR LEAVING COUNTRIES FOR FAMILY REUNIFICATION 139

168 Right of child and parents to Right of child and parent “to enter their own country” leave any country (including their own), subject only to This right is unqualified by any restrictions. An legal restrictions “which are earlier draft of article 10 proposed that the child necessary to protect national be given the right to “return” to his or her country, security, public order (ordre but this was changed to “enter” to accommodate public) , public health or those circumstances where children were born morals or the rights and outside their State of nationality (E/CN.4/1986/39, freedoms of others and are pp. 5 to 8; Detrick, p. 201). Article 12(4) of the consistent with the rights of International Covenant on Civil and Political this Convention” Rights is the source: “No one shall be arbitrarily deprived of the right to enter his own country.” i c t l r This provision reflects the wording of article e a The Human Rights Committee has issued a 12(2) of the International Covenant on Civil and General Comment on freedom of movement, Political Rights which provides: “Everyone shall in which it notes, in relation to this right in the be free to leave any country including his own.” International Covenant on Civil and Political It was drafted at a time when a number of coun- Rights: “The right of a person to enter his or her tries, including many of those in the sphere of the own country recognizes the special relationship former USSR, unreasonably refused to allow citi- of a person to that country. The right has vari- zens to leave the country. This is still the case in ous facets... The scope of ‘his own country’ is certain countries. broader than the concept ‘country of his nation- The French term ordre public is used in a num- ality’. It is not limited to nationality in a formal ber of international treaties; it is said to be more sense, that is, nationality acquired at birth or by precise than “public order” (E/CN.4/1986/39, pp. conferral; it embraces, at the very least, an indi- 5 to 8; Detrick, p. 200) but it seems that there are vidual who, because of his or her special ties to ordre public now a variety of interpretations of or claims in relation to a given country, cannot be considered to be a mere alien...” (Human Rights across the world, some of which are more related Committee, General Comment No. 27, 1999, HRI/ to economic considerations than to the social ones GEN/1/Rev.8, paras. 19 and 20, p. 217) normally understood by the phrase “public order”. Reporting guidelines: see Guidelines for Periodic Reports (Revised 2005) (CRC/C/58/Rev.1), Appendix 3, page 699. Implementation Handbook for the Convention on the Rights of the Child 140

169 i c t l r e a Implementation Checklist General measures of implementation • Have appropriate general measures of implementation been taken in relation to article 10, including: identification and coordination of the responsible departments and agencies at all ■ ■ levels of government (article 10 is relevant to the departments of home affairs, foreign affairs, justice and social welfare )? ■ ■ identification of relevant non-governmental organizations/civil society partners? ■ a comprehensive review to ensure that all legislation, policy and practice is ■ compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation which includes where necessary the identification of goals and indicators of ■ ■ progress? ■ which does not affect any provisions which are more conducive to the rights of ■ the child? ■ ■ which recognizes other relevant international standards? ■ ■ which involves where necessary international cooperation? (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole.) budgetary analysis and allocation of necessary resources? ■ ■ ■ ■ development of mechanisms for monitoring and evaluation? ■ ■ making the implications of article 10 widely known to adults and children? development of appropriate training and awareness-raising (in relation to article 10 ■ ■ )? ficers and social workers the judiciary, immigration of likely to include Specific issues in implementing article 10 • Are all applications by parents or children for entry to or exit from the country for the purposes of family reunification dealt with in a positive manner? ■ ■ ■ humane manner? ■ ■ Are all such applications dealt with as quickly as possible? ■ ■ ■ Are children and families involved in these applications treated with respect? ■ ■ Are requests by parents or children not to be deported dealt with in a positive and humane manner? Does the State recognize the right to family reunification of children who are ■ ■ resident in the country but do not have nationality status or official leave to remain? ■ Are the views of children taken into account when decisions relating to family ■ reunification are made? ENTERING OR LEAVING COUNTRIES FOR FAMILY REUNIFICATION 141

170 i c t l r e a see page XIX How to use the checklist, ■ ■ Are applicants and their family members protected from any adverse consequences from making a request to enter or leave the country for family reunification purposes? Are children permitted entry to the country and/or permission to leave the country ■ ■ in order to visit a parent? ■ ■ Are parents permitted entry to the country and/or permission to leave the country in order to visit a child? ■ ■ Subject to the limitations listed in article 10(2), are parents and children entitled to leave the country? ■ Are parents and children always entitled to enter their own country? ■ ■ Has the State ratified the International Convention on the Protection of the Rights ■ of All Migrant Workers and Members of their Families? The Convention is indivisible and its articles interdependent. Reminder : Article 10 should not be considered in isolation. Particular regard should be paid to: The general principles Article 2: all rights to be recognized for each child in the jurisdiction without discrimination on any ground Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 6: right to life and maximum possible survival and development Article 12: respect for the child’s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child Closely related articles Articles whose implementation is related to that of article 10 include: Article 5: parental duties and rights and the child’s evolving capacities Article 7: right to know and be cared for by parents Article 8: preservation of identity, including family relations Article 9: non-separation from parents except when necessary for best interests Article 11: protection from illicit transfer and non-return from abroad Article 16: protection from arbitrary interference in privacy, family and home Article 18: parents having joint responsibility Article 22: refugee children Article 35: prevention of sale, trafficking and abduction of children Implementation Handbook for the Convention on the Rights of the Child 142

171 c l i t e Illicit r a transfer and non-return of children abroad ... Text of Article 11 1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad. 2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements. on children who are taken out of their country, atifying States have responsibilities whereas article 35 is not. under article 11 to prevent children from being wrongfully taken or from 1997, Manual on Human Rights Reporting, The being retained outside their jurisdic- R observes that “children may be abducted by one tion, to secure that these children are recovered of the parents and are usually not permitted to and to undertake that abducted children brought return home,... The situation often tends to per- into their jurisdiction are returned. manently prevent the child from having access to the parent with whom the child used to live or The article is primarily concerned with paren- Summary with whom the child had direct and regular con- tal abductions or retentions. Though the article tacts and personal relations (see article 9, para- includes non-parents in its scope, it should be graph (3) and article 10, paragraph (2)). It also noted that article 35 covers the sale, traffick- shows how important it is to be guided by the ing and abduction of children, as does the new best interests of the child and in ensuring, as a Optional Protocol to the Convention on the sale general rule, that both parents continue to assume of children, child prostitution and child pornog- their responsibilities for the upbringing and raphy. The difference between the two articles is development of the child, even when separation not immediately clear, given that “illicit transfer Manual, or divorce has intervened.” ( p. 451) and non-return of children abroad” is the same thing as “abduction” (even when the child is will- The article encourages States to conclude or ing and no force is used). Broadly speaking, the become parties to multilateral agreements. distinction is, first, that article 11 applies to chil- Principal among these is the Hague Convention dren taken for personal rather than financial gain, on the Civil Aspects of International Child usually parents or other relatives, whereas “sale” Abduction. ■ and “trafficking” has a commercial or sexual motive. Second, article 11 is exclusively focused ILLICIT TRANSFER AND NON-RETURN OF CHILDREN ABROAD 143

172 States in which the Hague Convention on the Civil Aspects of International Child Abduction applies, as a result of ratification or accession (as at July 2007) Albania, Argentina, Armenia, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Canada, Chile, China – Hong Kong Special Administrative Region only and Macau Special Administrative Region only, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Guatemala, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Malta, Mauritius, Mexico, Moldova, Monaco, Montenegro, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, San Marino, Serbia, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, i c t l r Thailand, The former Yugoslav Republic of Macedonia, Trinidad and Tobago, Turkey, Turkmenistan, e a Ukraine, United Kingdom, United States of America, Uruguay, Uzbekistan, Venezuela, Zimbabwe. between the two countries involved. In these cir- Measures to combat illicit cumstances the court will normally order such transfer and non-return of children to be returned promptly to the place children abroad where they have habitual residence, when a final decision as to their future can be made. The courts As article 11 acknowledges, a most effective may refuse to order this if the child objects or is means of implementing its provisions is to sign at grave risk of harm or has been over a year in and implement the relevant international trea- the new environment and is settled there – but the ties, such as the Hague Convention on the Civil court’s business is not to investigate the merits of Aspects of International Child Abduction (1980). the dispute itself. Each State Party to the Hague For example, the Committee expressed its deep Convention has an administrative body called the concern to Algeria: Central Authority, whose function is to receive “... at the difficulty of implementing judicial and transmit applications under the Convention. decisions regarding custody and visitation rights for Algerian children with one parent In addition to the Hague Convention, there are living outside Algeria. It further expresses its regional treaties such as the Inter-American concern that child abduction is particularly Convention on the International Return of prevalent among children of mixed marriages. Children, and the European Convention on the “The Committee recommends that the Recognition and Enforcement of Decisions State Party undertake all necessary efforts Concerning Custody of Children. These can be to prevent and combat illicit transfer and helpful in augmenting the principles of the Hague non-return of children and to ensure proper Convention, for example by enforcing the details and expeditious implementation of judicial of existing court orders. Some countries have fully decisions made with regard to custody and visiting rights. It further recommends that acceded to the Convention; others have entered into the State Party strengthen dialogue and its provisions only in relation to specified coun- consultation with relevant countries, notably tries. Even where States have not ratified, bilateral those with which the State Party has signed agreements can be concluded between two coun- an agreement regarding custody or visitation tries. The Committee observed to Mauritius: rights, and ratify the Hague Convention on “While noting the ratification and subsequent Civil Aspects of International Child Abduction domestication by the State Party of the of 1980.” (Algeria CRC/C/15/Add.269, paras. 48 Hague Convention on Civil Aspects of and 49) International Child Abduction, the Committee is nevertheless concerned about the slow pace The Hague Convention is a global instrument. of the State Party’s formal recognition of other At the time of writing, a substantial number of countries as parties to the Convention when countries have ratified the Convention (see box), they have acceded to it, which hampers the although there is a significant absence of Middle effective implementation of the Convention in Eastern and Far Eastern countries. Its provi- case of international abduction of children. sions, in brief, protect children under the age of “The Committee recommends that the 16 who have been wrongfully (that is, in breach of State Party formally recognize every other someone’s rights of custody) removed or retained State which has acceded to the same Hague abroad, if the Hague Convention is in force Convention as party to that Convention in order Implementation Handbook for the Convention on the Rights of the Child 144

173 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children The following States have ratified the Convention (as at July 2007): Australia, Czech Republic, Hungary, Latvia, Monaco, Morocco, Slovakia, Slovenia The following States have acceded to the Convention (as at July 2007): Albania, Armenia, Bulgaria, Ecuador, Estonia, Lithuania, Ukraine. to provide immediate and effective protection whereabouts of abducted or wrongfully i c t l r e a for abducted children in accordance with the retained children. Hague Convention and with articles 11 and 3 For example, the Committee noted to Canada: of the Convention on the Rights of the Child.” “The Committee notes with satisfaction that (Mauritius CRC/C/MUS/CO/2, paras. 39 and 40) Canada is a party to the Hague Convention In addition, the Hague Convention on Jurisdiction, on the Civil Aspects of International Child Applicable Law, Recognition, Enforcement and Abduction of 1980 and notes the concern of Cooperation in respect of Parental Responsibility the State Party that parental abductions of children are a growing problem. and Measures for the Protection of Children “The Committee recommends that the State (1996) came into force in 2002 (see box). This Party apply the Hague Convention to all Convention does not deal directly with paren- children abducted to Canada, encourage States tal abductions, but it does settle related matters that are not yet party to the Hague Convention such as who has parental responsibility and cus- to ratify or accede to this treaty and, if tody rights of children who have moved between necessary, conclude bilateral agreements countries, and which country has jurisdiction to to deal adequately with international child act on behalf of these children (for example as abduction. It further recommends that between the country of the child’s habitual resi- maximum assistance be provided through diplomatic and consular channels in order to dence and the child’s country of nationality). The resolve cases of illicit transfer and non-return Committee has also encouraged States to ratify in the best interests of the children involved.” this Convention. (Canada CRC/C/15/Add.215, paras. 28 and 29) Beyond ratifying international treaties, and The Committee commended the fact that in encouraging others States to ratify, a State should Sweden also take other measures to implement article 11. “... financial assistance is made available to In particular, it should secure that: cover the costs incurred by individuals when machinery is in place to speedily put checks restoring illicitly transferred or non-returned • on borders and to obtain appropriate court children.” (Sweden CRC/C/15/Add.248, para. 27) orders (for example, to withhold the child’s And it recommended to Croatia passport) when it is suspected that a child is “... that professionals dealing with this kind going to be abducted; of case receive adequate and ongoing training parents are provided with legal aid and finan- and that maximum assistance be provided • cial assistance when it is necessary to pay for through diplomatic and consular channels, in the costs of the child’s return; order to solve cases of illicit transfer.” (Croatia CRC/C/15/Add.243, para. 46) diplomatic and consular officials and the • judiciary overseeing the law are fully The Committee has been relatively silent on the acquainted with the principles of the Hague failure of countries to become parties to the Hague Convention; Conventions and other regional treaties on abduc- tion, though failure to do so could result in a breach information is provided from government • of article 11 for the individual children concerned. agencies and state databases to identify the Reporting guidelines: see Guidelines for Periodic Reports (Revised 2005) (CRC/C/58/Rev.1), Appendix 3, page 699. ILLICIT TRANSFER AND NON-RETURN OF CHILDREN ABROAD 145

174 i c t l r e a Implementation Checklist • General measures of implementation Have appropriate general measures of implementation been taken in relation to article 11, including: identification and coordination of the responsible departments and agencies at all ■ ■ departments of home affairs, levels of government (article 11 is relevant to )? foreign affairs, justice, social welfare and social security ■ ■ identification of relevant non-governmental organizations/civil society partners? ■ a comprehensive review to ensure that all legislation, policy and practice is ■ compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation ■ which includes where necessary the identification of goals and indicators of ■ progress? ■ which does not affect any provisions which are more conducive to the rights of ■ the child? ■ ■ which recognizes other relevant international standards? which involves where necessary international cooperation? ■ ■ (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole). ■ budgetary analysis and allocation of necessary resources? ■ development of mechanisms for monitoring and evaluation? ■ ■ making the implications of article 11 widely known to adults and children? ■ ■ development of appropriate training and awareness-raising (in relation to article 11 ■ ■ )? judiciary, social workers, border officials and the police likely to include the Specific issues in implementing article 11 • on on the Civil Aspects of International Has the State ratified the Hague Conventi ■ ■ Child Abduction? ■ Has the State ratified the Hague Convention on Jurisdiction, Applicable Law, ■ Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children? ■ ■ Has the State ratified or acceded to any regional or bilateral agreements relating to child abduction? ■ Is the judiciary fully acquainted with the Hague Conventions’ provisions? ■ Are effective methods in place to prevent a child from being abducted (e.g., border ■ ■ checks, court orders, confiscation of passports)? Are parents and children given financial assistance where necessary to exercise their ■ ■ rights under this article and any multilateral agreements? Are State institutions empowered to release information that will help trace the ■ ■ whereabouts of abducted children? Implementation Handbook for the Convention on the Rights of the Child 146

175 i c t l r e a How to use the checklist, see page XIX The Convention is indivisible and its articles interdependent. Reminder : Article 11 should not be considered in isolation. Particular regard should be paid to: The general principles Article 2: all rights to be recognized for each child in the jurisdiction without discrimination on any ground Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 6: right to life and maximum possible survival and development Article 12: respect for the child’s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child Closely related articles Articles whose implementation is particularly related to that of article 11 include: Article 5: parental duties and rights and the child’s evolving capacities Article 7: right to be cared for by parents Article 8: right to preservation of nationality, including family relations Article 9: non-separation from parents except when necessary for best interests; right to maintain contact with both parents on a regular basis Article 10: right to family reunification Article 16: protection from arbitrary interference in privacy, family and home Article 18: parents having joint responsibility Article 35: prevention of sale, trafficking and abduction of children Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography ILLICIT TRANSFER AND NON-RETURN OF CHILDREN ABROAD 147

176 UNICEF/HQ97-0526/Murray-Lee

177 c l i t e r a Respect for the views of the child ... Text of Article 12 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. he Committee on the Rights of the trative proceedings affecting him or her. This Child asserted early on that article 12 covers a very wide range of court hearings and is a general principle of fundamental also formal decision-making affecting the child T importance, relevant to all aspects of in, for example, education, health, planning, the implementation of the Convention on the Rights environment and so on (see page 155 below). of the Child and to the interpretation of all other The Committee has consistently emphasized that articles. Summary the child must be regarded as an active subject of Paragraph 1 requires States to assure rights and that a key purpose of the Convention is to emphasize that human rights extend to chil- that any child capable of forming a view has • dren. Article 12, together with the child’s right to the right to express views freely in all matters freedom of expression (article 13), and other civil affecting him or her; rights to freedom of thought, conscience and reli- that the child’s views are given due weight in gion (article 14), and freedom of association (art- • accordance with icle 15) underline children’s status as individuals age and • with fundamental human rights, and views and maturity. • feelings of their own. The Committee has rejected what it termed “the charity mentality and paternal- Paragraph 2 specifically provides the child with istic approaches” to children’s issues. It invariably the right to be heard and have his or her views given due weight in any judicial and adminis- raises implementation of article 12 with States RESPECT FOR THE VIEWS OF THE CHILD 149

178 with a preamble emphasizing that they were not Parties and identifies traditional practices, culture exhaustive and indicating that it will shortly draft and attitudes as obstacles. In 2006, the Committee a General Comment on the interpretation of art- held a Day of General Discussion on “The right icle 12, to highlight of the child to be heard” and resolved to adopt a General Comment (under preparation in 2007); “... its importance as a general principle as its first 10 General Comments each interpret the well as a substantive right and its linkages with other articles of the Convention on the implications of article 12 in particular contexts. Rights of the Child and in order to provide The rights of the child set out in the two para- further guidance on the implementation of graphs of article 12 do not provide a right to the Convention. The General Comment will self-determination but concern involvement in explore in detail how the right should be decision-making. The references to the “evolving implemented consistently in all settings.” capacities” of the child, in articles 5 and 14 (pages In the preamble to the recommendations, the 75 and 185) do emphasize the need to respect the i c t l r e a Committee states: child’s developing capacity for decision-making. “The Committee considers that recognizing Certain other articles include references to chil- the right of the child to express views and to dren’s participation. Article 9(2) refers indirectly participate in various activities, according to her/his evolving capacities, is beneficial for the to the child’s right to be heard in relation to pro- child, for the family, for the community, the ceedings involving separation from his or her school, the State, for democracy. parent(s), during which “all interested Parties “To speak, to participate, to have their views shall be given an opportunity to participate in the taken into account: these three phases describe proceedings and make their views known” (art- the sequence of the enjoyment of the right to icle 9, page 129). In relation to adoption proceed- participate from a functional point of view. ings, article 21(a) refers to “the informed consent” The new and deeper meaning of this right is of the persons concerned (page 296). Every child that it should establish a new social contract. deprived of his or her liberty has the right under One by which children are fully recognized article 37 to challenge the legality of the depriva- as rights-holders who are not only entitled tion before a court or other authority, suggesting to receive protection but also have the right to participate in all matters affecting them, a a right to initiate court action rather than just to right which can be considered as the symbol for be heard (page 557). And article 40, in relation to their recognition as rights holders. This implies, children “alleged as, accused of, or recognized as in the long term, changes in political, social, having infringed the penal law,” emphasizes the institutional and cultural structures.” (Committee juvenile’s right to an active role in the proceed- on the Rights of the Child, Report on the forty-third ings, though he or she must not “be compelled session, September 2006, Day of General Discussion, to give testimony or to confess guilt” (article Recommendations, Preamble. For full text, see www. 40(2)(b)(iv), pages 614 and 615). ohchr.org/english/bodies/crc/discussion.htm.) The Universal Declaration of Human Rights The Committee highlights traditional and cul- states: “Everyone has the right to freedom of tural attitudes to children as the major obstacle opinion and expression; this right includes free- to acceptance of the child as a holder of rights dom to hold opinions without interference and to and to implementation of article 12 in States seek, receive and impart information and ideas in all regions. It calls for promotion of a through any media and regardless of frontiers” social climate conducive to child participation (article 19). And the International Covenant on (Recommendations, para. 9). Civil and Political Rights states: “Everyone shall The Committee very often pursues this in its have the right to hold opinions without interfer- Concluding Observations on States’ reports. For ence” (article 19(1)). The significance of article example: 12 of the Convention on the Rights of the Child is that it not only requires that children should be “The Committee notes with concern that, due assured the right to express their views freely, but to traditional and paternalistic attitudes still widespread in the country, children are not also that they should be heard and that their views encouraged to express their views and that, in ■ be given “due weight”. general, their views are not heard nor given due weight in decisions affecting them in the The child as a subject of rights family, at school, in the community and in social and an active participant life at large.” (Chile CRC/C/15/ Add.173, para. 29) In 2006, following its Day of General Discussion “While welcoming the establishment of on “The right of the child to be heard”, the a Children’s Parliament, the Committee is concerned that, owing to traditional attitudes, Committee adopted detailed recommendations, Implementation Handbook for the Convention on the Rights of the Child 150

179 respect for the views of the child remains process affecting his or her life, as well as to limited within the family, in schools, in the influence decisions taken in his or her regard... courts before administrative authorities and “At the first sight it might be considered that in society at large...” (Burkina Faso CRC/C/15/ article 12 is basically addressing the same real- Add.193, para. 26) ity as article 13 on freedom of expression and “The Committee welcomes the establishment information. It is true that they are closely con- of the Children’s Parliament and the nected. But the fact they were both incorporated development of a model for Children’s in the Convention and coexist in an autonomous City Councils, but remains concerned that manner, has to be interpreted as to mean that, respect for the views of the child remains while article 13 recognizes in a general way free- limited owing to traditional societal attitudes dom of expression, article 12 should prevail in all towards children on the part of schools, courts, administrative bodies and, especially, those cases where the matters at stake affect the i c t (Morocco CRC/C/15/Add.211, the family...” l child, while stressing the right of the child to be r e a para. 30) heard and for the child’s views to be taken into (Manual account.” , p. 426) “The Committee welcomes initiatives to increase child participation by the In examining successive reports, the Committee establishment of children’s councils, persists in encouraging both law reform and associations and projects in several states public education and training to implement art- and districts, but remains concerned that icle 12. It encourages the development of chil- traditional attitudes towards children in dren’s organizations; the Guidelines for Periodic society, especially girls, still limit the respect Reports (Revised 2005) asks States to provide for their views within the family, at school, in data on the number of child and youth organiza- institutions and at the community government tions or associations and the number of members (India CRC/C/15/Add.228, para. 36) level...” they represent, and also on the number of schools “While noting that articles 36 and 38 of the with independent student councils (CRC/C/58/ Algerian Constitution provide for freedom of Rev.1, Annex, paras. 6 and 7). The Committee opinion and expression, as well as for freedom urges States to review implementation of article of intellectual, artistic and scientific creation, 12 and to consider what impact children’s views the Committee is concerned that respect for are having on policy development. For example: the views of the child remains limited owing to traditional societal attitudes towards children “The Committee recommends that further within the family, schools and the community efforts be made to ensure the implementation at large. The Committee notes with particular of the principle of respect for the views of the concern that the public exercise of freedom child. Particular emphasis should be placed on of opinion and expression by a child requires the right of every child to express his or her (Algeria the authorization of his/her guardian.” views freely in all matters affecting him or her, CRC/C/15/Add.269, para. 33) the views of the child being given due weight in accordance with the age and maturity of “While the Committee welcomes the efforts the child in question. This general principle made by the State Party to promote respect for should also be reflected in all laws, judicial the views of the child, it is aware of a general and administrative decisions, policies and attitude in society to pay little attention to programmes relating to children and should be (Hungary CRC/C/HUN/CO/2, children’s views...” implemented in the family, school, community para. 24) and all institutions attended by and working (Hungary CRC/C/HUN/CO/2, with children.” “... the Committee is of the view that para. 25) children’s right to free expression and to participation is still limited in the State Party, “In the light of article 12 of the Convention, the (United partly due to traditional attitudes.” Committee recommends that the State Party: Republic of Tanzania CRC/C/TZA/CO/2, para. 29) (a) Strengthen its efforts to ensure that children have the right to express their views Manual on Human Rights Reporting, The freely in all matters affecting them and to 1997, comments: “This article sets one of the have those views given due weight in schools fundamental values of the Convention and and other educational institutions, as well as probably also one of its basic challenges. In in the family, and reduce the discrepancies essence it affirms that the child is a fully fledged in the opportunities for the participation of person having the right to express views in all students from different social and regional matters affecting him or her, and having those backgrounds; views heard and given due weight. Thus the child (b) Develop community-based skills-training has the right to participate in the decision-making programmes for parents, teachers and other RESPECT FOR THE VIEWS OF THE CHILD 151

180 professionals working with and for children, to taken into consideration once they have been encourage children to express their informed (Belgium CRC/C/15/Add.178, para. 21) solicited...” views and opinions by providing them with In the outcome document of the 2002 United proper information and guidance; Nations General Assembly’s special session on (c) Ensure that children be provided with the States com- A World Fit for Children, children, opportunity to be heard in any judicial and mit themselves in its Declaration to: “Listen to administrative proceeding affecting them, and children and ensure their participation. Children that due weight be given to those views in accordance with the age and maturity of the and adolescents are resourceful citizens capa- child; ble of helping to build a better future for all. We (d) Systematically ensure the effective must respect their right to express themselves and participation of children’s organizations in to participate in all matters affecting them, in the development of national, regional and accordance with their age and maturity.” (Report local policies or programmes affecting them, of the Ad Hoc Committee of the Whole of the i c t l including educational reforms; and r e a twenty-seventh special session of the General (e) Provide more detailed information on this Assembly, 2002, A/S-27/19/Rev.1, Declaration, issue in the next periodic report.” (Latvia para. 7.9) And the Plan of Action identifies chil- CRC/C/LVA/CO/2, para. 25) dren as key partners: “Children, including ado- “In the light of article 12 of the Convention, lescents, must be enabled to exercise their right the Committee recommends that the State to express their views freely, according to their Party: evolving capacity, and build self-esteem, acquire (a) Strengthen its efforts to promote within knowledge and skills, such as those for conf lict the family, schools, and other institutions resolution, decision-making and communica- respect for the views of children, especially tion, to meet the challenges of life. The right of girls, and facilitate their participation in all children, including adolescents, to express them- matters affecting them; selves freely must be respected and promoted (b) Amend the procedural civil codes to ensure that children are heard in judicial proceedings and their views taken into account in all mat- affecting them; ters affecting them, the views of the child being (c) Strengthen national awareness-raising given due weight in accordance with the age and campaigns to change traditional attitudes that maturity of the child. The energy and creativity limit children’s right to participation; of children and young people must be nurtured (d) Regularly review the extent to which so that they can actively take part in shaping children participate in the development and their environment, their societies and the world evaluation of laws and policies affecting them, they will inherit. Disadvantaged and marginal- both at national and local levels, and evaluate ized children, including adolescents in particular, the extent to which children’s views are taken need special attention and support to access basic into consideration, including their impact on (Mexico relevant policies and programmes.” services, build self-esteem and to prepare them CRC/C/MEX/CO/3, para. 28) to take responsibility for their own lives. We will strive to develop and implement programmes to The Committee emphasizes that it is not enough promote meaningful participation by children, that legislation should establish children’s right including adolescents, in decision-making pro- to be heard and to have their views given due cesses, including in families and schools and at weight: children must be made aware of their the local and national levels.” (Plan of Action, A/ right. Thus the Committee encouraged France S-27/19/Rev.1, para. 32(1)) to promote and facilitate respect for the views of children and their participation in all matters Reservations affecting them The Committee on the Rights of the Child has “... as a right they are informed of, not indicated concern about declarations and reser- (France CRC/C/15/Add.240, merely a possibility”. vations that appear to challenge full recognition para. 22) In recommen- of the child as a subject of rights. dations adopted following the Day of General It suggested to Iceland that children Discussion on “The right of the child to be heard”, “... are not adequately informed on how to the Committee contribute effectively, or how their input ... “... urges States Parties that have made (Iceland will be taken into consideration.” reservations on the application of articles 12, CRC/C/15/Add. 203, para. 26) 13, 14, 15 and 17 of the Convention to consider And to Belgium that (Committee on the Rights their withdrawal.” “... children are not adequately informed on of the Child, Report on the forty-third session, September 2006, Day of General Discussion, how they can have input into policies that affect them, nor how their views will be Recommendations, para. 14) Implementation Handbook for the Convention on the Rights of the Child 152

181 For example, in ratifying the Convention, Poland to assure to the child the right to have a say in situ- made a declaration: “The Republic of Poland ations that may affect him or her. The child should considers that a child’s rights as defined in the therefore not be envisaged as a passive human Convention, in particular the rights defined in being or allowed to be deprived of such right of articles 12 to 16, shall be exercised with respect intervention, unless he or she would clearly be for parental authority, in accordance with Polish incapable of forming his or her views. This right customs and traditions regarding the place of the should therefore be ensured and respected even in child within and outside the family.” (CRC/C/2/ situations where the child would be able to form Rev.8, p. 36) views and yet be unable to communicate them, or when the child is not yet fully mature or has not The Committee welcomed Poland’s intention to yet attained a particular older age, since his or her review its declarations and reservations with a views are to be taken into consideration ‘in accor- view to considering withdrawal. It went on to say: dance with the age and maturity of the child’...” i c t l “The Committee is concerned that traditional r e a Manual ( , p. 426) attitudes still prevailing in the country may not be conducive to the realization of the general Some countries reported that they had set a mini- principles of the Convention, including, mum age on the right of the child to be heard, for in particular, article 2 (principle of non- example in custody proceedings following sepa- discrimination), article 3 (principle of the best ration or divorce of parents, but the Convention interests of the child) and article 12 (respect provides no support for this, and States can- (Poland CRC/C/15/ for the views of the child).” not quote the best interests principle to prevent Add.31, para. 12) children having an opportunity to express their When the Committee examined Poland’s Second views. Report in 2002, it encouraged the State to “con- The Committee commented, for example, to tinue and complete” the process of withdrawing Finland: all of its reservations to and declarations on the “The Committee expresses its concern that the Convention (Poland CRC/C/15/Add.194, paras. 9 views of children, in particular those below and 10). 12 years of age, are not always taken into full consideration, especially in child custody cases The child who is “capable of and access disputes taken to court. forming his or her own views”: “The Committee recommends that the State article 12(1) Party make sure that the views of children under 12 years of age who are affected by Article 12 does not set any lower age limit on a judicial proceeding are always heard, if children’s right to express views freely. It is clear they are considered to be mature enough, and that this takes place in a child-friendly that children can and do form views from a very environment. It also recommends that the early age, and the Convention on the Rights of State Party undertake a regular review of the the Child provides no support to those who would extent to which children’s views are taken impose a lower age limit on the ascertainment or into consideration and of their impact on consideration of children’s views. In its General policy-making and court decisions, programme Comment No. 7 on “Implementing child rights implementation and on children themselves.” in early childhood”, the Committee encourages (Finland CRC/C/15/Add.132, paras. 29 and 30) States Parties to construct a positive agenda for When it examined Finland’s Third Report, it fur- rights in early childhood: ther noted: “A shift away from traditional beliefs that “The Committee notes the information on the regard early childhood mainly as a period for rules for hearing children in legal procedures, the socialization of the immature human being for example in custody or child protection towards mature adult status is required. The measures, but it is concerned at the fact that Convention requires that children, including only children aged 15 and older have the right the very youngest children, be respected as to be heard directly by the judge/court. Below persons in their own right. Young children that age, it is left to the discretion of the should be recognized as active members of judge whether to hear the child directly. When families, communities and societies, with their this is not done and the views of children own concerns, interests and points of view.” are submitted to the court via a third party, (Committee on the Rights of the Child, General sometimes this is done without the child being Comment No. 7, 2005, CRC/C/GC/7/Rev.1, para. 5) heard by that third party. The 1997, Manual on Human Rights Reporting, “The Committee recommends that the State states: “Pursuant to the provisions of this article, Party take legislative and other measures to ensure that article 12 of the Convention is fully States Parties have a clear and precise obligation RESPECT FOR THE VIEWS OF THE CHILD 153

182 government administrative officials, the implemented, in particular that the child has judiciary, children themselves and society at the right to express his/her views directly to large with a view to creating an encouraging the judge when decisions in judicial and/or atmosphere in which children, including those administrative proceedings affecting the child below the age of 10 years, can freely express have to be taken.” (Finland CRC/C/15/Add.272, their views, and where, in turn, these are given paras. 22 and 23) (Albania CRC/C/125/Add.249, due weight.” It suggested that Lithuania should para. 31) “... effectively promote and encourage The “right to express those views respect for the views of children below the freely” age of 12 years, according to his/her evolving There are no boundaries on the obligation of (Lithuania CRC/C/LTU/CO/2, capacities;...” States Parties to assure the child the right to para. 32 (c)) express views freely. In particular, this empha- i c And it encouraged Albania to t l sizes that there is no area of traditional parental or r e a adult authority – the home or school for example “... provide educational information – in which children’s views have no place. to parents, teachers and headmasters, Respect for the views and feelings of the young child “ Article 12 states that the child has a right to express his or her views freely in all matters affect- ing the child, and to have them taken into account. This right reinforces the status of the young child as an active participant in the promotion, protection and monitoring of their rights. Respect for the young child’s agency – as a participant in family, community and society – is frequently overlooked, or rejected as inappropriate on the grounds of age and immaturity. In many countries and regions, traditional beliefs have emphasized young children’s need for training and socializa- tion. They have been regarded as undeveloped, lacking even basic capacities for understanding, communicating and making choices. They have been powerless within their families, and often voiceless and invisible within society. The Committee wishes to emphasize that article 12 applies both to younger and to older children. As holders of rights, even the youngest children are entitled to express their views, which should be “given due weight in accordance with the age and maturity of the child” (art. 12.1). Young children are acutely sensitive to their surroundings and very rap- idly acquire understanding of the people, places and routines in their lives, along with awareness of their own unique identity. They make choices and communicate their feelings, ideas and wishes in numerous ways, long before they are able to communicate through the conventions of spoken or written language. In this regard: (a) The Committee encourages States Parties to take all appropriate measures to ensure that the concept of the child as rights holder with freedom to express views and the right to be con- sulted in matters that affect him or her is implemented from the earliest stage in ways appropri- ate to the child’s capacities, best interests, and rights to protection from harmful experiences; (b) The right to express views and feelings should be anchored in the child’s daily life at home (including, when applicable, the extended family) and in his or her community; within the full range of early childhood health, care and education facilities, as well as in legal proceedings; and in the development of policies and services, including through research and consultations; (c) States Parties should take all appropriate measures to promote the active involvement of parents, professionals and responsible authorities in the creation of opportunities for young children to progressively exercise their rights within their everyday activities in all relevant settings, including by providing training in the necessary skills. To achieve the right of par- ticipation requires adults to adopt a child - centred attitude, listening to young children and respecting their dignity and their individual points of view. It also requires adults to show patience and creativity by adapting their expectations to a young child’s interests, levels of understanding and preferred ways of communicating.” (Extract from Committee on the Rights of the Child, General Comment No. 7, “Implementing child rights in early childhood”, 2005, CRC/C/GC/7/Rev.1, para. 14. For summary, see article 18, page 242. For full text see www.ohchr.org/english/bodies/crc/comments.htm.) Implementation Handbook for the Convention on the Rights of the Child 154

183 In its General Comment No. 5 on “General mea- In article 13 (see page 177), the right is re-stated and developed to include the right to “seek, sures of implementation for the Convention on receive and impart information and ideas of all the Rights of the Child (arts. 4, 42 and 44, para. kinds”. 6)”, the Committee notes that the principle of article 12, It should be emphasized that article 12 implies “... which highlights the role of the child as an no obligation on the child to express views. active participant in the promotion, protection “Freely” implies without either coercion or con- and monitoring of his or her rights, applies straint: “The child has the right to express views equally to all measures adopted by States to . He or she should therefore not suffer any freely (CRC/GC/2003/5, implement the Convention.” pressure, constraint or influence that might pre- para. 12. For more discussion of article 12 in relation vent such expression or indeed even require to government and overall policy-making and in it.” ( Manual on Human Rights Reporting , 1997, other settings, see page 162.) p. 426) i c t l r e a “... the views of the child being “In all matters affecting the child” given due weight in accordance with There are few areas of family, community, the age and maturity of the child” regional, national or international decision- These words provide an active obligation to lis- making that do not affect children. When the pro- ten to children’s views and to take them seriously. posal to include the child’s right to express views Again, they are in accordance with the concept of was first discussed in the Working Group draft- the evolving capacities of the child, introduced in ing the Convention on the Rights of the Child, the article 5. In deciding how much weight to give to text referred to the right of the child to “express a child’s views in a particular matter, the twin cri- his opinion in matters concerning his own person, teria of age and maturity must be considered. Age and in particular marriage, choice of occupation, on its own is not the criterion; the Convention on medical treatment, education and recreation”. But the Rights of the Child rejects specific age bar- most delegations felt that the matters on which riers to the significant participation of children States Parties should enable children to express in decision-making. Maturity is undefined; it opinions “should not be subject to the limits of a implies the ability to understand and assess the list, and therefore the list ought to be deleted” (E/ implications of the matter in question. This in CN.4/1349*, p. 3 and E/CN.4/L.1575, pp. 13 and turn places obligations on the decision makers to 14; Detrick, pp. 224 and 225). give the child sufficient information. The reference to “all matters” shows that the par- “For this purpose, the child ticipatory rights are not limited to matters spe- shall in particular be provided cifically dealt with under the Convention. As the the opportunity to be heard in Manual on Human Rights Reporting, 1997, com- any judicial and administrative ments: “The right recognized in article 12 is to affecting the all matters be assured in relation to proceedings affecting child. It should apply in all questions, even those the child”: article 12(2) that might not be specifically covered by the When originally introduced during the draft- Convention, whenever those same questions have ing of the Convention on the Rights of the Child, a particular interest for the child or may affect his the proposal that children should have a right to or her life... be heard in judicial and administrative proceed- “The right of the child to express views therefore ings was linked to the best interests principle, as applies in relation to family matters, for instance the second paragraph of article 3, but it was then in case of adoption, in school life, for instance moved to take a more logical place with the over- when a decision of expulsion of the child is under all participation principle in what was to become consideration, or in relation to relevant events tak- article 12 (E/CN.4/1989/48, pp. 42 to 45; Detrick, ing place at the community level, such as when a pp. 226 and 227). decision is taken on the location of playgrounds The link between the paragraphs indicates that for children or the prevention of traffic accidents the second paragraph of article 12 applies to chil- is being considered. The intention is therefore to dren “capable of forming views”, again empha- ensure that the views of the child are a relevant sizing that very young children should have the factor in all decisions affecting him or her and to formal right to be heard. As already noted, the stress that no implementation system may be car- Convention provides no support for a set mini- ried out and be effective without the intervention mum age. For the child to be “provided the oppor- of children in the decisions affecting their lives.” Manual ( , pp. 426 and 427) tunity” implies an active obligation on the State RESPECT FOR THE VIEWS OF THE CHILD 155

184 and adoption cases, children in conflict with to offer the child the opportunity to be heard, the law, children victims of physical violence, although, again, it is important to emphasize that sexual abuse or other violent crimes, asylum- there is no requirement that the child express seeking and refugee children and children who views. Also, “For this purpose...” means that have been the victims of armed conflict and in courts and other proceedings must not just hear emergencies. children’s views, but also give them due weight “The Committee affirms that all children having regard to age and maturity. involved in judicial and administrative proceedings must be informed in a child- “Any judicial ... proceedings affecting the child” friendly manner about their right to be heard, covers a very wide range of court hearings, modalities of doing so and other aspects of the including all civil proceedings such as divorce, proceedings. custody, care and adoption proceedings, name- “The Committee advises States Parties to changing, judicial applications relating to place of provide all relevant professional categories i c t l residence, religion, education, disposal of money r e involved in judicial and administrative a and so forth, judicial decision-making on nation- proceedings with mandatory training on the implications of article 12 of the Convention. ality, immigration and refugee status, and crimi- Judges and other decision makers should, as a nal proceedings; it also covers States’ involvement rule, explicitly state and explain the outcome in international courts. Arguably, it covers crimi- of the proceedings, especially if the views of nal prosecutions of parents, the outcome of which the child could not be accommodated... can affect children dramatically. “The Committee requests that States Parties establish specialized legal aid support systems The reference to “administrative proceedings” in order to provide children involved in broadens the scope still further and certainly administrative and judicial proceedings with includes, for example, formal decision-making qualified support and assistance.” (Committee in education, health, planning and environmental on the Rights of the Child, Report on the forty-third decisions, social security, child protection, alter- session, September 2006, Day of General Discussion, native care, employment and administration of Recommendations, paras. 34 to 36 and 38) juvenile justice. There is an increasingly recognized need to adapt In its General Comment No. 5 on “General mea- courts and other formal decision-making bodies sures of implementation for the Convention on to enable children to participate. For court hear- the Rights of the Child (arts. 4, 42 and 44, para. ings this could include innovations such as more 6)”, the Committee highlights that for rights to informality in the physical design of the court and have meaning, effective remedies must be avail- the clothing of the judges and lawyers, the video- able to redress violations: taping of evidence, sight screens, separate wait- “This requirement is implicit in the Convention ing rooms and the special preparation of child and consistently referred to in the other six witnesses (see also article 19, page 269). In 2005, major international human rights treaties. the Economic and Social Council of the United Children’s special and dependent status creates Nations adopted Guidelines on Justice in Matters real difficulties for them in pursuing remedies involving Child Victims and Witnesses of Crime. for breaches of their rights. So States need These reiterate children’s right to participation to give particular attention to ensuring that and define “child sensitive” as an approach that there are effective, child-sensitive procedures available to children and their representatives. “balances the child’s right to protection and that These should include the provision of child- takes into account the child’s individual needs friendly information, advice, advocacy, and views” (para. 9(d)). The Guidelines provides including support for self-advocacy, and access both principles and a framework “that could to independent complaints procedures and assist Member States in enhancing the protection to the courts with necessary legal and other of child victims and witnesses in the criminal jus- (CRC/GC/2003/5, para. 24. See article assistance.” tice system” (Economic and Social Council, reso- 4, page 55.) lution 2005/20, annex). The Committee draws The Committee addresses article 12(2) in detail States’ attention to the Guidelines. For example, in recommendations adopted following its Day of it expressed concern that in Thailand, General Discussion on “The right of the child to “... respect for the views of the child may not be heard”: be fully taken into account in court processes “The Committee reminds States Parties that involving children either as victims, witnesses the right of the child to be heard in judicial or alleged offenders”. and administrative proceedings applies to all It recommended that Thailand should relevant settings without limitation, including “... improve child-sensitive court procedures” children separated from their parents, custody Implementation Handbook for the Convention on the Rights of the Child 156

185 in accordance with the Guidelines (Thailand Similarly, the Committee noted in Belgium, CRC/C/THA/CO/2, paras. 29 and 30). “With respect to court or administrative proceedings affecting the child,... the right to The Committee expresses concern when chil- be heard is largely discretionary, ... , and is not dren, or children below a certain age, do not adequately guaranteed to the child... have unfettered access to the courts. In recom- “The Committee recommends ... that mendations adopted following its Day of General legislation governing procedure in courts and Discussion on “The right of the child to be heard”, administrative proceedings ensure that a child the Committee states: capable of forming his/her own views has the right to express those views and that they are “The Committee affirms that age should not (Belgium CRC/C/15/Add.178, given due weight.” be a barrier to the child’s right to participate paras. 21 and 22) fully in the justice process. In cases when States Parties have established a minimum In examining Chile’s Second Report, the age for the right of the child to be heard, i c t l Committee noted with deep concern that r e measures should be taken to ensure that the a views of the child below the minimum age be “... the juvenile judge may impose a protection considered in accordance with the maturity of measure on children without summoning them the child by specially trained social workers or to appear when the case does not constitute other professionals. a crime, ordinary offence or minor offence.” “The Committee further notes that age should (Chile CRC/C/15/Add.173, para. 29) not be an impediment for the child to access The Committee emphasizes that children’s rights complaints mechanisms within the justice system and administrative proceedings.” under article 12(2) apply equally to religious (Committee on the Rights of the Child, Report on the courts, telling Lebanon that it noted with con- forty-third session, September 2006, Day of General cern that the religious and sharia courts decide Discussion, Recommendations, paras. 51 and 52) on issues related to custody and care of the child without hearing the child’s opinion. It recom- It frequently raises age barriers with States. For mended that Lebanon example: “... continue to strengthen its efforts to “... the Committee remains concerned at promote respect for the views of all children inconsistencies in legislation as well as the and to facilitate their participation ... in fact that in practice, the interpretation of judicial procedures, including procedures in the legislation, and determination of which the religious and sharia courts...” (Lebanon child is “capable of discernment”, may leave possibilities of denying a child this right or CRC/C/LBN/CO/3, paras. 35 and 36) make it subject to the child’s own request and “either directly, or through a repres- may give rise to discrimination. In addition, the entative or an appropriate body, in a Committee is concerned at the conclusion of the Special Rapporteur on the sale of children, manner consistent with the child prostitution and child pornography that, procedural rules of national law” in practice, most judges are not willing to hear States are left with discretion as to how the child’s children and that, in the past, justice has failed views should be heard; but where procedural child victims of sexual abuse (E/CN.4/2004/9/ rules suggest that this be done through a repre- Add.1, paras. 85 and 89). sentative or an appropriate body, the obligation “The Committee recommends that the is to transmit the views of the child. This princi- State Party review legislation with a view to ple should not be confused with the obligation in removing inconsistencies related to the respect for the views of the child.” (France CRC/C/15/ article 3 to ensure that the best interests of the Add.240, paras. 21 and 22) child are a primary consideration in all actions concerning children. “The Committee notes with concern that in mainland China children are not able to file During discussions in the Working Group draft- complaints in court or be consulted directly by ing the Convention on the Rights of the Child, the courts without parental consent, except in the explanation of the inclusion of the final quali- the case of children 16 years or older who earn fication – “in a manner consistent with the pro- their own livelihood... cedural rules of national law” – was “that in “Furthermore, the Committee recommends case the hearing of the child’s opinion required that on the mainland the State Party review some international legal assistance, the request- legislation affecting children with a view to ing State’s procedure should also be taken into ensuring that they are given the opportunity to be heard in any judicial and administrative account” (E/CN.4/1989/48, pp. 42 to 45; Detrick, proceeding affecting them, and that due p. 227). weight is given to their views in accordance Manual on Human Rights Reporting, 1997, The with the age and maturity of the child...” emphasizes: “The reference to ‘procedural rules of (China CRC/C/CHN/CO/2, paras. 37 and 40) RESPECT FOR THE VIEWS OF THE CHILD 157

186 any form of violence, abuse, including sexual national law’ is intended to stress the need for the abuse, neglect, maltreatment or exploitation, national law to include specif ic procedures to allow even while in the care of their parents, be for the implementation of the right as recognized established, as a means to ensure protection of by article 12, and naturally not to be interpreted as and respect for their rights.” (Ethiopia a means of allowing possible inadequate solutions CRC/C/15/Add.67, paras. 16 and 31) contained in the procedural law to prevent the full In its General Comment on “The rights of chil- enjoyment of this fundamental right. In fact, such dren with disabilities”, the Committee notes the an interpretation would again be contrary to article particular vulnerability to violence and neglect 4 of the Convention.” ( Manual , p. 429) of children with disabilities, in the family and in The Committee on Complaints procedures. institutions. It suggests that lack of access to a the Rights of the Child sees the provision of effec- functional complaint-receiving, monitoring sys- tive complaints procedures for children as part of tem is conducive to systematic and continuing i the implementation of article 12. Children need c t l r e a abuse. The Committee urges States to ensure that access to complaints procedures in all aspects of all institutions providing care for children with their lives – in the family, in alternative care, in disabilities should have an accessible and sensi- schools and all other institutions, and in services tive complaint mechanism (Committee on the and facilities relevant to them. The Committee Rights of the Child, General Comment No. 9, frequently has expressed concern at the lack 2006, CRC/C/GC/9, paras. 42 and 43). of complaints procedures for children and has encouraged States to develop ‘child-friendly’ Strategies for implementing complaints procedures: participation rights “The Committee also expresses concern at the absence of an independent mechanism to Participation rights to be reflected register and address complaints from children in domestic legislation concerning violations of their rights under The Committee on the Rights of the Child under- the Convention. The Committee suggests that lines in its General Comment No. 5 on “General an independent child-friendly mechanism measures of implementation for the Convention be made accessible to children to deal with complaints of violations of their rights and on the Rights of the Child (arts. 4, 42 and 44, to provide remedies for such violations. The para. 6)” that article 12, together with the other Committee further suggests that the State articles identified as general principles, should be Party introduce an awareness-raising campaign incorporated into national laws and procedures to facilitate the effective use by children of (CRC/GC/2003/5, para. 12). To ref lect both para- such a mechanism.” (Saint Kitts and Nevis graphs of article 12 in domestic law requires pro- CRC/C/15/Add.104, para. 13) visions that uphold the right to participation in In promoting the development of independent the informal arena of family life, in alternative human rights institutions for children – children’s care for children deprived of their family envi- ombudspeople, commissioners and focal points ronment, in children’s school and community life, on children’s rights in human rights commissions and specifically in all formal judicial and admin- – the Committee has encouraged them, where istrative proceedings affecting the child. appropriate, to provide complaints procedures In recommendations adopted following its Day of and also to review children’s access to other com- General Discussion on “The right of the child to plaints procedures (see article 4, page 55). be heard”, the Committee urges States In the context of article 19, the Committee has “... to examine all existing laws and recommended there should be complaints proce- regulations with a view to ensure that article dures for children suffering violence in and out- 12 is adequately integrated in all relevant side the family. The Committee has noted that domestic laws, regulations and administrative children need to be able to complain indepen- (Committee on the Rights of instructions.” dently of their parents: the Child, Report on the forty-third session, “The Committee is concerned that, since September 2006, Day of General Discussion, children are able to lodge complaints only Recommendations, para. 42) through their parents or legal guardians, the States’ reports show that, increasingly, the prin- right to adequate recourse and complaint ciple of article 12 has been incorporated into procedures for children victim of abuse, including sexual abuse, neglect or ill-treatment domestic law, at least in relation to certain areas within their families does not seem to be of children’s lives and into certain court hearings. secured... The Committee continues to recommend that legal “... the Committee recommends that a system of complaints aimed at children victims of reform should ref lect article 12. For example: Implementation Handbook for the Convention on the Rights of the Child 158

187 “In the light of article 12 of the Convention, Right to information – a prerequisite the Committee is concerned that this general for participation principle is not adequately reflected in the Manual on Human Rights Reporting, As the (Armenia 1996 Rights of the Child Act...” 1997, makes clear “... the child should be provided CRC/C/15/Add.119, para. 26) with the necessary information about the possi- The Committee has also emphasized that legal ble existing options and the consequences aris- reform should be accompanied by awareness- ing therefrom. In fact, a decision can only be free raising and training: , Manual once it is also an informed decision.” ( “The Committee notes with appreciation p. 426) that the State Party’s domestic legislation Article 13 asserts the child’s freedom to “seek, has integrated provisions guaranteeing the receive and impart information and ideas of all participatory rights of children. However, it kinds...” (see page 177). And, in addition, article 17 remains concerned that, in practice, these i c t l r e asserts the child’s general right to information (see rights are not sufficiently implemented at a the various levels of Costa Rican society. In page 217). But in relation to the various decision- the light of articles 12 to 17 and other related making arenas in which the child’s views could be articles of the Convention, the Committee expressed – family, school, community, court and recommends that further efforts be made so on – there is an implied obligation to ensure that to ensure the implementation of the the child is appropriately informed about the cir- participatory rights of children, especially their cumstances and the options. rights to participate in the family, at school, within other institutions and in society in In recommendations adopted following its Day general. Awareness-raising among the public of General Discussion on “The right of the child at large, as well as educational programmes on to be heard”, the Committee reaffirms the links the implementation of these principles, should between article 12 and article 13, be reinforced in order to change traditional “... as the right to receive and impart perceptions of children as objects and not as information is an important pre-requisite (Costa Rica CRC/C/15/Add.117, subjects of rights.” to realize participation of children. The para. 16) Committee urges States Parties to consider It followed this up again following examination developing child-friendly information in of Costa Rica’s Third Report: relation to all matters affecting children.” (Committee on the Rights of the Child, Report on “The Committee notes with appreciation the State Party’s many and various efforts the forty-third session, September 2006, Day of to implement and promote the child’s rights General Discussion, Recommendations, para. 12) to express his/her views and to participate Participation rights without in decision-making processes and other discrimination activities regarding his/her position. But In conjunction with the anti-discrimination prin- it also notes the State Party’s concern that cultural problems are a factor which impedes ciple in article 2 (page 17), article 12 emphasizes the implementation of these rights in the the equal right of all children to express views family. freely and have them taken seriously. “The Committee recommends that the The need for special measures to combat poten- State Party undertake further and targeted measures to promote the child’s rights to tial discrimination in participation is highlighted express his/her views freely within the family in the recommendations adopted following the context and in institutions such as shelters and Committee’s Day of General Discussion on “The other institutions for children. The Committee right of the child to be heard”: further recommends that the State Party “The Committee stresses that appropriate ensure that the child’s view is taken into measures need to be undertaken in order account in any proceedings dealing with child to address discrimination of vulnerable or issues. The Committee further recommends marginalized groups of children such as those that the media take into account the views of affected by poverty or armed conflict, children the child. Finally, the Committee recommends without parental care, including children in that the State Party take the necessary steps institutions, children with disabilities, refugee to promote awareness among children and and displaced children, street children and adolescents of their participatory rights in children belonging to indigenous and minority the family, at school, within other institutions groups, in order for all children to enjoy the and in society in general through educational right enshrined in article 12... programmes on the implementation of these “The Committee urges States Parties to pay principles, and strengthen their opportunity special attention to the right of the girl child (Costa Rica CRC/C/15/Add.266, to participate.” as sexist stereotypes and patriarchal values paras. 21 and 22) RESPECT FOR THE VIEWS OF THE CHILD 159

188 a process not only ensures that the policies are undermine and place severe limitations on the targeted to their needs and desires, it is also a enjoyment of the right set forth in article 12.” valuable tool of inclusion since it ensures that (Committee on the Rights of the Child, Report on the decision-making process is a participatory the forty-third session, September 2006, Day of one. Children should be equipped with General Discussion, Recommendations, paras. 8 whatever mode of communication to facilitate and 10) expressing their views. Furthermore, States In comments on States’ reports, the Committee Parties should support the development has emphasized that children with varied social of training for families and professionals on promoting and respecting the evolving and regional backgrounds should be encouraged capacities of children to take increasing to participate, with special attention to vulnera- responsibilities for decision-making in their ble groups. The need to ensure the participation own lives.” (Committee on the Rights of the Child, of indigenous children in the design, implemen- General Comment No. 9, 2006, CRC/C/GC/9, tation and evaluation of strategies, policies and para. 15) i c t l r e a projects aimed at implementing their rights is The Platform for Action of the Fourth World stressed in the recommendations adopted follow- Conference on Women states that: “Girls are less ing the Committee’s Day of General Discussion encouraged than boys to participate in and learn on “The rights of indigenous children” (Report about the social, economic and political func- on the thirty-fourth session, September/October tioning of society, with the result that they are 2003, CRC/C/133, Recommendations, p. 134, not offered the same opportunities as boys to para. 8). take part in decision-making processes” (Fourth The participation of children with disabilities World Con ference on Women, Beiji ng, 1995, without discrimination may require the produc- Platform for Action, A/CONF.177/20/Rev.1, para. tion of materials in special media and the pro- 265). This demands educational and other strate- vision of special technology, interpreters (for gies to ensure girls have equal rights to participa- example signing for deaf and partially hearing tion and to respect for their views. children) and special training, including of other In 1997, the Committee on the Elimination of children, parents and other family members, Discrimination against Women adopted a General teachers and other adults. The Convention on Recommendation on political and public life. the Rights of Persons with Disabilities, adopted This emphasizes the importance of States taking in December 2006, requires (article 7(3)): “States all appropriate measures to eliminate discrimi- Parties shall ensure that children with disabilities nation against women in political and public life have the right to express their views freely on all and provides detailed proposals (but surprisingly matters affecting them, their views being given does not highlight the importance of promoting due weight in accordance with their age and girls’ participation rights, including in education) maturity, on an equal basis with other children, (Committee on the Elimination of Discrimination and to be provided with disability and age-appro- against Women, General Recommendation No. priate assistance to realize that right.” Article 21, 23, 1997, HRI/GEN/1/Rev.8, p. 318). on freedom of expression and opinion, and access Implementation not dependent to information, details measures that States on resources should take to ensure that persons with disabili- The Committee on the Rights of the Child has ties can exercise these rights. emphasized that implementation of the general The Committee expands on this from the per- principles of the Convention, including article spective of children in its General Comment No. 12, cannot be dependent on resources. Article 4 9 on “The rights of children with disabilities”: of the Convention states that with regard to eco- “More often than not, adults with and without nomic, social and cultural rights, States Parties disabilities make policies and decisions related shall undertake measures for implementation to children with disabilities while the children “to the maximum extent of available resources”, themselves are left out of the process. It is accepting the inevitability of progressive imple- essential that children with disabilities are mentation of these rights in some States. But heard in all procedures affecting them and this does not apply to civil and political rights that their views be respected in accordance including the obligations under article 12. with their evolving capacities. This should include their representation in various bodies Education, training and other such as parliament, committees and other strategies to promote the child’s forums where they voice views and participate participation in making the decisions that affect them The Committee recognizes that legal frame- as children in general and as children with disabilities specifically. Engaging them in such works alone, although essential, will not achieve Implementation Handbook for the Convention on the Rights of the Child 160

189 administrative officials, the judiciary, the necessary changes in attitudes and practice traditional leaders and society at large on within families, schools or communities. So it children’s rights to participate and to have has encouraged a variety of other strategies for their views taken into consideration...” (Burkina implementation of article 12, including in par- Faso CRC/C/15/Add.193, para. 27) ticular education (proposing as a key strategy the incorporation of the Convention within the school “The Committee recommends that the State curriculum) and information programmes, and Party:... systematic training of all those working with and (b) Provide educational information to, for children. among others, parents, teachers, government administrative officials, the judiciary, the In recommendations adopted following its Day of Roman Catholic Church and other religious General Discussion on “The right of the child to groups, and society at large, on children’s right be heard”, the Committee reminds States Parties to have their views taken into account and to “... of the need to provide training on the i c (Poland participate in matters affecting them.” t l r e a rights of the child to all public officials who CRC/C/15/Add.184, para. 31) influence government policy and implement “The Committee recommends that the State programmes which involve children’s issues Party:... in order to promote awareness of the rights (c) Develop skills-training programmes in of the child and the obligation of taking community settings for parents, teachers, children’s views into account.” (Committee social workers and local officials to encourage on the Rights of the Child, Report on the forty- children to express their informed views third session, September 2006, Day of General and opinions, and to have those views taken Discussion, Recommendations, para. 29) into consideration (e.g. using the brochure It also promotes parent education including on the ‘They who will inherit the land ... cannot be rights of the child (para. 17) and teacher training heard’).” (Iceland CRC/C/15/Add.203, para. 27) to include participatory teaching methodologies Within the overall obligation under the (para. 24). Convention’s article 42 to make the principles In Concluding Observations, the Committee and provisions widely known by appropriate frequently proposes comprehensive awareness- and active means to adults and children alike, raising and public education. For example: the Committee on the Rights of the Child has “The Committee recommends that the stressed participatory rights and the importance State Party develop a systematic approach of actively involving children themselves in strat- to increasing public awareness of the egies to fulfil article 42 (see page 627). participatory rights of children in the best interests of the child, particularly at the local Monitoring implementation levels and in traditional communities, with and impact the involvement of community and village The Committee proposes that States should leaders, and ensure that the views of the review the extent of implementation of article 12, child are heard and taken into consideration which implies asking children themselves about in accordance with their age and maturity the degree to which their views are heard and in families, communities, schools, care institutions, and the judicial and administrative respected, including within the family. It has sug- systems. In that regard, the Committee gested that the work of children’s parliaments and recommends that the State Party launch similar institutions should be evaluated to con- campaigns to change the traditional attitude sider what impact they have on national policy and values which do not allow children to (see below, page 163). express their views.” (Malawi CRC/C/15/Add.174, para. 30) For example, the Committee urged Mexico to: “... (d) Regularly review the extent to which “In the light of article 12, the Committee children participate in the development and recommends that the State Party:... evaluation of laws and policies affecting them, (c) Undertake campaigns to make children, both at national and local levels, and evaluate parents, professionals working with and for the extent to which children’s views are taken children and the public at large aware that into consideration, including their impact on children have the right to be heard and to (Mexico relevant policies and programmes.” have their views taken seriously.” (Argentina CRC/C/MEX/CO/3, para. 28) CRC/C/15/Add.187, para. 33) Lithuania was recommended to: “The Committee encourages the State Party to “... (e) undertake a regular review of the pursue its efforts:... extent to which children’s views are taken (b) To provide educational information to, among others, parents, teachers, government into consideration and of the impact this has RESPECT FOR THE VIEWS OF THE CHILD 161

190 itself, but rather as a means by which States on policy, programme implementation and (Lithuania CRC/C/LTU/ on children themselves.” make their interactions with children and CO/2, para. 32(e)) their actions on behalf of children ever more sensitive to the implementation of children’s And Algeria was encouraged to: rights. “... undertake a regular review of the extent “One-off or regular events like Children’s to which children’s views are taken into Parliaments can be stimulating and raise consideration and of their impact on policy- general awareness. But article 12 requires making, court decisions and programme consistent and ongoing arrangements. implementation...” (Algeria CRC/C/15/Add.269, Involvement of and consultation with para. 34) children must also avoid being tokenistic and aim to ascertain representative views. The emphasis on ‘matters that affect them’ Implementation in different in article 12(1) implies the ascertainment of settings i c t l r the views of particular groups of children e a on particular issues – for example children Within government, and in overall who have experience of the juvenile justice policy-making system on proposals for law reform in that The participation of children at all levels of area, or adopted children and children policy-making has been encouraged by the in adoptive families on adoption law and Committee on the Rights of the Child. As the policy. It is important that Governments Committee notes in its General Comment No. 5 develop a direct relationship with children, on “General measures of implementation for the not simply one mediated through non- governmental organizations (NGOs) or human Convention on the Rights of the Child (arts. 4, 42 rights institutions. In the early years of the and 44, para. 6)”: Convention, NGOs played a notable role in “Article 12 of the Convention ... requires due pioneering participatory approaches with weight to be given to children’s views in all children, but it is in the interests of both matters affecting them, which plainly includes Governments and children to have appropriate implementation of ‘their’ Convention.” (Committee on the Rights of the direct contact.” (CRC/GC/2003/5, para. 57) Child, General Comment No. 5, 2003, CRC/GC/2003/5, para. 12) For all States, this remains a relatively new chal- lenge, with no real blueprints on how best to The Committee expands on children’s partici- achieve meaningful participation, so experiment pation in general measures of implementation is needed. in the recommendations adopted following its In its General Comment, the Committee empha- Day of General Discussion on “The right of the development of a children’s rights sizes that the child to be heard”. These include proposing that perspective throughout Government, parliament the permanent governmental body identified as and the judiciary is required for effective imple- having responsibility for children’s rights should mentation of the whole Convention, highlighting establish direct contact with children, as should in particular the articles in the Convention iden- national human rights institutions, and that chil- tified by the Committee as general principles, dren should be involved in planning, design, including article 12: implementation and evaluation of national plans and in monitoring: “This principle, which highlights the role of the “... The Committee calls on States Parties to child as an active participant in the promotion, comply with their obligation to ensure that protection and monitoring of his or her rights, child participation is taken into account in applies equally to all measures adopted by resource allocation and that mechanisms to States to implement the Convention. facilitate the participation of children be “Opening government decision-making institutionalized as a tool for implementation. processes to children is a positive challenge “The Committee calls for States Parties to which the Committee finds States are clearly designate which authority has the increasingly responding to. Given that few key responsibility in the implementation of States as yet have reduced the voting age children’s rights and ensure that this entity below 18, there is all the more reason to establishes direct contact with child- and ensure respect for the views of unenfranchised youth-led organizations in order to engage children in Government and parliament. If with them. consultation is to be meaningful, documents as “The Committee recommends that well as processes need to be made accessible. independent national human rights But appearing to ’listen’ to children is institutions and/or children’s ombudsmen relatively unchallenging; giving due weight or commissioners ensure that children are to their views requires real change. Listening to children should not be seen as an end in given easy access to raise their concerns and Implementation Handbook for the Convention on the Rights of the Child 162

191 that adequate resources are dedicated to the promotion and protection of the rights of the involve children in their monitoring of the child”, the Committee highlights the relevance of implementation of children’s rights. article 12: “The Committee recommends that children “NHRIs [national human rights institutions] and youth be directly included in the planning, have a key role to play in promoting respect design, implementation and evaluation of for the views of children in all matters National Plans of Action which relate to affecting them, as articulated in article 12 children’s rights, in recognition of their role of the Convention, by Government and as core stakeholders in the process. Such an throughout society. This general principle open consultation can ensure that National should be applied to the establishment, Plans of Action for the implementation of organization and activities of national human children’s rights are fully relevant for children.” rights institutions. Institutions must ensure (Committee on the Rights of the Child, Report on the that they have direct contact with children and forty-third session, September 2006, Day of General that children are appropriately involved and i c t l Discussion, Recommendations, paras. 25 to 28) r e a consulted. Children’s councils, for example, could be created as advisory bodies for NHRIs The Committee also proposes involvement of to facilitate the participation of children in children in law reform and in promoting ratifica- matters of concern to them. tion of relevant international human rights instru- “NHRIs should devise specially tailored ments: consultation programmes and imaginative “The Committee notes the role that can be communication strategies to ensure full played by children in reviewing domestic compliance with article 12 of the Convention. legislation and advocating for legal reform A range of suitable ways in which children can in order to ensure that the principle of communicate with the institution should be participation is adequately reflected in (Committee on the Rights of the established.” legislation, for example in the Family Code and Child, General Comment No. 2, 2002, the Criminal Code. In countries that have yet to CRC/GC/2002/2, paras. 16 and 17) adopt a Children’s Code, the active promotion for legislative change by children themselves The Committee has Children’s parliaments. can play a catalysing role. Furthermore, welcomed the establishment of children’s parlia- organized youth participation can make ments as one participation strategy, but it has also important contributions to promotion of noted that implementation of article 12 requires the ratification of international human consistent and on-going, rather than one-off, (Committee on the Rights rights instruments.” events. So in recommendations adopted follow- of the Child, Report on the forty-third session, ing its Day of General Discussion on “The right September 2006, Day of General Discussion, Recommendations, para. 32) of the child to be heard”, it urges States Parties “... to move from an events-based approach The Committee has recommended formal struc- of the right to participation to systematic tures for children’s participation, including at inclusion in policy matters in order to ensure national level. For example, it recommended that that children can express their views and China should effectively participate in all matters affecting “... consider establishing a standing body (Committee on the Rights of the Child, them.” to represent children’s views in the political Report on the forty-third session, September 2006, (China CRC/C/CHN/CO/2, para. 41) process.” Day of General Discussion, Recommendations, para. 25) And it recommended that Tanzania should The Committee goes on to note: “... formalize structures of participation for children and young people, and in particular “The Committee recognizes as positive the step ... provide support to the Junior Council, so taken in numerous countries by the creation that the Council can function effectively as the of child parliaments at national, regional and nationally representative body for children...” local levels, as such initiatives offer valuable (United Republic of Tanzania CRC/C/TZA/CO/2, insight of the democratic process and establish para. 30) links between children and decision makers. The Committee however urges States Parties There are many possible forms of participation to establish clear guidelines on how the views in policy development and the process of govern- presented by children in such forums are taken ment: consultation with children as stakeholders, into account by the formal political process opinion polling among children, on-line consulta- and policy-making and ensure that children are tion projects, child-citizen juries, standing advi- provided with adequate response in relation to (Recommendations, para. 30) their proposals.” sory panels of children, questionnaires and so on. It has emphasized that children’s parliaments and In its General Comment No. 2 on “The role of independent national human rights institutions in similar structures should as far as possible be RESPECT FOR THE VIEWS OF THE CHILD 163

192 to public service (article 25 of the International representative, and it has encouraged evaluation of the impact of such bodies on policy develop- Covenant on Civil and Political Rights) does not ment. For example, the Committee recommended directly consider the issue of voting age, merely that Togo should stating that voting should be available to “every adult citizen”. It states that: “Any conditions “Evaluate and assess the functioning of the Children’s Parliament and its impact on which apply to the exercise of the rights pro- decision-making, and provide guidance and tected by article 25 should be based on objective support for the continuation of its activities and reasonable criteria. For example, it may be (Togo CRC/C/15/ in a democratic manner...” reasonable to require a higher age for election or Add.255, para. 33) appointment to particular offices than for exercis- ing the right to vote, which should be available to And it urged Greece, Gabon and Burkina Faso to: every adult citizen.” (Human Rights Committee, “... Ensure that the Youth Parliament is General Comment No. 25, 1996, HRI/GEN/1/ representative of all sectors of the State Party’s i c t l r e a child population, including children from Rev.8, para. 4, p. 208) distinct ethnic, religious, linguistic or cultural In local government and services, (Greece CRC/C/15/Add.170, para. 39(b)) groups.” including planning, housing, “... Promote the activities and take duly into the environment consideration the decisions of the Children’s The Committee encourages participation of chil- Parliament and take care that all groups of dren in decision-making in local government and (Gabon CRC/C/15/ children are represented.” in the planning, implementation and monitoring Add.171, para. 28; Burkina Faso CRC/C/15/Add.193, of local services. In recommendations adopted para. 27) following the General Discussion on “The right When the Committee examined Nigeria’s Second of the child to be heard”, the Committee Report, it noted with appreciation the high-level “... calls on children to actively engage in local interministerial delegation sent by the State Party, policy issues which relate to budget allocations “... as well as the participation of the speaker for example in the areas of education, health, of the Children’s Parliament which gave a working conditions for youth and violence clearer understanding of the situation of (Recommendations, para. 31) prevention.” (Nigeria CRC/C/15/ children in the State Party.” The Manual on Human Rights Reporting, 1997, Add.257, para. 2) uses, as examples of implementation of article The Committee has not as yet Voting rights. 12 at the community level, the involvement of explored the relevance of article 12 to the vot- children when decisions are being made about ing age, set in most States at or above the age of the location of playgrounds or the prevention of majority. But it does note in its General Comment traffic accidents, and specifically refers to chil- No. 5 on “General measures of implementation for Manual , dren’s involvement in local councils. ( the Convention on the Rights of the Child (arts. 4, p. 427) 42 and 44, para. 6)” (see above, page 162): The report of the Second United Nations “Given that few States as yet have reduced Conference on Human Settlements (Habitat II) the voting age below 18, there is all the more reason to ensure respect for the views of states that “Special attention needs to be paid to unenfranchised children in Government and the participatory processes dealing with the shap- (CRC/GC/2003/5, para. 12) parliament.” ing of cities, towns and neighbourhoods; this is in order to secure the living conditions of children And following its Day of General Discussion and of youth and to make use of their insight, cre- on “The right of the child to be heard”, the ativity and thoughts on the environment.” (United Committee recommends: Nations Conference on Human Settlements “... that States Parties take into account (Habitat II), A/CONF.165/14, p. 15) children’s participation in the community at different levels and notes that in certain The Committee has recommended, for example contexts apparent inconsistencies arise, such as to Norway: when children below the age of 18 are subject “The Committee commends the State to military service yet are not eligible to vote.” Party for its efforts to respect the rights of (Committee on the Rights of the Child, Report on children to have their views heard including, the forty-third session, September 2006, Day of notably, through the appointment of child General Discussion, Recommendations, para. 38) representatives at a municipal level. The A General Comment by the Human Rights Committee joins the State Party in expressing Committee on the right to participate in public concern, however, that in practice children’s affairs, voting rights and the right of equal access views are insufficiently heard and taken into Implementation Handbook for the Convention on the Rights of the Child 164

193 consideration. The Committee is concerned Access to an effective complaints procedure that many children are not aware of their is an essential element of child protection, and rights in this domain under the Convention because of the extent of parental violence and and national laws, or of the opportunities abuse of children, children require access which which have been created for their views to be is independent of their parents (see above, page expressed. 158). The Committee has welcomed the develop- “Taking note of the State Party’s recent ment of free child helplines, enabling children to commitments, the Committee recommends express concerns in confidence and seek advice that the State Party continue its efforts to and help (see, for example, Philippines CRC/C/15/ inform children and others, including parents and legal professionals, of children’s right to Add.259, para. 31). express their views and of the mechanisms The Agenda for Action adopted at the First World and other opportunities which exist for this Congress against Commercial Sexual Exploitation purpose. The Committee recommends, further, i c t l of Children (Stockholm, Sweden, 1996) includes that the State Party undertake a regular r e a review of the extent to which children’s views a section encouraging participation, to: are taken into consideration and of the impact “(a) promote the participation of children, includ- this has on policy, programme implementation ing child victims, young people, their families, (Norway CRC/C/15/ and on children themselves.” peers and others who are potential helpers of chil- Add.126, paras. 24 and 25) dren so that they are able to express their views In child protection and to take action to prevent and protect children Article 19 of the Convention on the Rights of the from commercial sexual exploitation and to assist Child sets out various measures for ensuring the child victims to be reintegrated into society; and protection of the child from all forms of violence and abuse. In each case, both before and during “(b) identify or establish and support networks any protection measures and in the planning, of children and young people as advocates of implementation and monitoring of child protec- child rights, and include children, according to tion systems, respect for the views of the child their evolving capacity, in developing and imple- is vital. A legal obligation to ascertain children’s menting government and other programmes con- views and give them due weight should be built cerning them.” (World Congress Plan of Action, into child protection legislation and applied to all A/51/385, para. 6. See also Yokohama Global decision-making (see article 19, page 249). Commitment 2001, page 526.) The Committee refers to the participation rights The report of the United Nations Secretary- of child victims of violence in judicial proceed- General’s Study on Violence Against Children ings in recommendations adopted following its proposes, among key overarching recommenda- Day of General Discussion on “The right of the tions, that States should “actively engage with child to be heard”: children and respect their views in all aspects of “The Committee thus urges States Parties to prevention, response and monitoring of violence ensure that the views, needs and concerns against them, taking into account article 12 of the of child victims who have suffered sexual Convention on the Rights of the Child. Children’s abuse or other violent crimes be presented organizations and child-led initiatives to address and considered in proceedings where their violence, guided by the best interests of the child, personal interests are affected. In addition should be supported and encouraged.” (Report to the rights outlined above for children in of the independent expert for the United Nations conflict with the law, States Parties should study on violence against children, United adopt and implement rules and proceedings for child victims of physical violence, sexual Nations, General Assembly, sixty-first session, abuse or other violent crimes ensuring that August 2006, A/61/299, para. 103. For further repetition of testimonies be avoided by the discussion, see article 19, page 251.) use of video-taped interviews to reduce re- Within the family environment traumatization, that protective measures, health and psychosocial services be made The Committee on the Rights of the Child has available and that unnecessary contact with consistently encouraged children’s participation the perpetrator be avoided. The identity of in decision-making within the family, proposing the victim should be maintained confidential that definitions of parents’ and other caregivers’ and, when required, the public and the media responsibilities should include an “article 12 should be excluded from the courtroom during obligation” to hear and take seriously the child’s (Committee on the Rights the proceedings.” views. Among recommendations adopted follow- of the Child, Report on the forty-third session, ing the Committee’s Day of General Discussion September 2006, Day of General Discussion, on “The right of the child to be heard” are: Recommendations, para. 48) RESPECT FOR THE VIEWS OF THE CHILD 165

194 “The Committee recommends that States In custody decisions and Parties further promote parent education alternative care on parenting and disseminate information Article 20 sets out States’ obligation to provide to parents on the rights enshrined in the alternative care for children deprived temporarily Convention and in particular of the right of the or permanently of their family environment. The child to express his or her views, as they are of child’s participative rights must be protected in all benefit to the whole family. kafalah of Islamic law, such settings – foster care, “The Committee encourages parents to and all kinds of institutions. The Committee’s support children in order to promote the realization of child participation at different emphasis on the need for legislation and other levels in society. strategies to reflect children’s rights under art- “The Committee recognizes that a icle 12 applies equally to alternative care. In addi- participatory family structure where the child tion to the overall right to express views and have can freely express views provides an important them taken seriously (article 12(1)), article 12(2) i c t l model to encourage child participation in r e a requires that the child is heard in any judicial or the wider society. Furthermore, it plays a administrative proceedings relating to alternative preventive role in the protection against care. Under article 9(2), in any proceedings to domestic violence and abuse.” (Committee determine that it is necessary to separate a child on the Rights of the Child, Report on the forty- third session, September 2006, Day of General from his or her parents, “all interested parties” Discussion, Recommendations, paras. 17 to 19) must be given an opportunity to participate (see article 9, page 129). Under article 25, children The rights of the child to a name and nationality placed by the State for care, protection or treat- and to preservation of identity (articles 7 and 8) ment must have a periodic review; under article require respect for the views of the child. 12, children should be permitted to participate in In October 1994, the Committee held a Day of these reviews (see article 25, page 380). General Discussion on “The role of the family The Committee referred to the right to respect in the promotion of the rights of the child”. One for the views of the child in recommendations of two main issues addressed was the civil rights adopted following its Day of General Discussion and freedoms of the child within the family. In its on “Children without parental care”: preliminary conclusions adopted following the “The Committee is concerned at the fact that Discussion, the Committee stated: children are not often heard in the separation “Traditionally, the child has been seen as and placement processes. It is also concerned a dependent, invisible and passive family that decision-making processes do not attach member. Only recently has he or she become enough weight to children as partners even ‘seen’ and, furthermore, the movement is though these decision have a far-reaching growing to give him or her the space to be impact on the child’s life and future... heard and respected. Dialogue, negotiation, “In the light of article 12 of the Convention, participation have come to the forefront the Committee recommends that all of common action for children. The family stakeholders continue and strengthen their becomes in turn the ideal framework for efforts to take into consideration the views the first stage of the democratic experience of the child and facilitate their participation for each and all of its individual members, in all matters affecting them within the including children. Is this only a dream or evaluation, separation and placement should it also be envisaged as a precise and process, in the out-of-home care and during challenging task?” (Committee on the Rights the transition process. It recommends that of the Child, Report on the seventh session, children should be heard throughout the September/October 1994, CRC/C/34, paras. 192 protection measure process, before making and 193) the decision, while it is implemented and also after its implementation. For this purpose, In adoption the Committee recommends establishment Relating to adoption, article 12(2) requires that of a special mechanism which values children the child is heard in any judicial or administra- as partners. Family group conferencing is tive proceedings, and article 21(a) refers to the one model to ensure that the child’s view is “informed consent” of persons concerned (see considered. It also recommends that States also article 21, page 296). The Committee high- Parties undertake a regular review of the lights the obligation to ensure respect for the extent to which children’s views are taken into child’s views in the adoption process and deci- consideration and of their impact on policy- sions in recommendations adopted following making and court decisions and on programme its Day of General Discussion on “The right implementation.” (Committee on the Rights of of the child to be heard” (Recommendations, the Child, Report on the fortieth session, September 2005, CRC/C/153, paras. 663 and 664) para. 44). Implementation Handbook for the Convention on the Rights of the Child 166

195 should be provided, taking into account due The Committee often raises with States inad- consideration for vulnerable children... equate respect for children’s views in decision- “The Committee reminds States Parties of making processes concerning custody and access their obligation to ensure that human rights and alternative care placements. For example, it education in general, and the CRC in particular, encouraged Poland to is included in the curricula in order to equip “Establish procedures to ensure that children children with the fundamental knowledge currently residing in institutions that are tools to enhance the exercise of their rights. being closed down are fully informed and Students informed of their rights can also able to participate in deciding their future more effectively combat discrimination, (Poland CRC/C/15/Add.184, placement...” violence and corporal punishment in schools. para. 37(d)) The Committee encourages States Parties to refer to the General Comment No. 8 on In schools ‘The Right of the Child to Protection from In its first General Comment, issued in 2001, on i c Corporal Punishment’ for further guidance on t l r e a “The aims of education”, the Committee empha- participatory strategies to eliminate corporal sizes that “children do not lose their human rights punishment. “The Committee calls on States Parties to by virtue of passing through the school gates” provide teacher training on participatory and highlights the importance of schools respect- teaching methodologies and its benefits and ing children’s participation rights: on paying special attention to the needs of “... the article attaches importance to the vulnerable children, whose difficult situation process by which the right to education is may lead to them dropping out of schools. The to be promoted. Thus efforts to promote children must enjoy special attention and be the enjoyment of other rights must not be given the opportunity to express their views undermined, and should be reinforced by the without intimidation.” (Committee on the Rights values imparted in the educational process. of the Child, Report on the forty-third session, This includes not only the content of the September 2006, Day of General Discussion, curriculum but also the educational processes, Recommendations, paras. 17 to 19) the pedagogical methods and the environment Both paragraphs of article 12 are relevant: the within which education takes place, whether general right of the child to express views freely it be the home, school, or elsewhere. Children “in all matters affecting the child”, which cov- do not lose their human rights by virtue of passing through the school gates. Thus, for ers all aspects of school life and decision-making example, education must be provided in a way about schooling; and the right to be heard in any that respects the inherent dignity of the child, “judicial and administrative proceedings affect- enables the child to express his or her views ing the child”. For example, “administrative” freely in accordance with article 12(1) and to proceedings might concern choice of school, participate in school life... Compliance with exclusion from school, formal assessments and the values recognized in article 29(1) clearly so on. There is a need for a legislative framework requires that schools be child friendly in the and procedures that provide for consultation with fullest sense of that term and that they be school students as a group, and also for ascertain- consistent in all respects with the dignity of ing and paying due attention to the views of indi- the child. Participation of children in school vidual children concerning individual decisions life, the creation of school communities and on education. student councils, peer education and peer counselling, and the involvement of children The Committee has commended positive devel- in school disciplinary proceedings should be opments. For example: promoted as part of the process of learning “The Committee notes with satisfaction the and experiencing the realization of rights.” functioning of a comprehensive pattern of (Committee on the Rights of the Child, General student representation in the school system.” Comment No. 1, 2001, CRC/GC/2001/1, para. 8) (Austria CRC/C/5/Add.98, para. 5) The Committee reiterates this in recommen- “The Committee appreciates the State Party’s dations adopted following its Day of General initiatives within the school environment. In Discussion on “The right of the child to be heard”, this regard, it welcomes the coordination of and continues: an election for schoolchildren to choose the “The Committee encourages the active provisions of the Convention most significant consultation of children in the development (Belize CRC/C/15/Add.99, para. 4) to them...” and evaluation of school curricula, including in the development of methodology, “... The Committee also notes with as greater participation is conducive to appreciation that the membership of school increasing the involvement of children in the (Mali disciplinary councils includes children.” CRC/C/15/Add.113, para. 5) learning process. Child-centred education RESPECT FOR THE VIEWS OF THE CHILD 167

196 the United Nations should support the promo- A particular issue, relevant to articles 12 and 13, is the right of children to organize and contribute tion and creation of mechanisms to involve youth to school newspapers and magazines (see article representation in all United Nations processes in 13, page 177). order to influence those processes. “Children not only will inherit the responsibility In child employment of looking after the Earth, but in many devel- In addition to protective legislation and pro- oping countries they comprise nearly half the cedures to prevent exploitation of children in population. Furthermore, children in both devel- employment (article 32, see page 479), under oping and industrialized countries are highly article 12, respect is required for the views of vulnerable to the effects of environmental deg- the child; in any judicial or administrative pro- radation. They are also highly aware supporters ceedings relating to employment of children, the of environmental thinking. The specific interests child has a right to be heard. Children must also of children need to be taken fully into account have access to complaints procedures relating to i c t l r e a in the participatory process on environment and employment. However, one of the challenges of development in order to safeguard the future sus- ending exploitation of child labour is to ensure tainability of any actions taken to improve the that children’s often sincere view that they should environment...” earn money and help to support the family is also heard and responded to. Among activities, Governments should take active steps to “Establish procedures to incorpo- The ILO Recommendation (No.190), supplement- rate children’s concerns into all relevant policies ing the Worst Forms of Child Labour Convention, and strategies for environment and development 1999 (No.182), emphasizes the importance of at the local, regional and national levels, includ- taking account of the views of children directly ing those concerning allocation of and entitle- affected by the worst forms of child labour (see ment to natural resources, housing and recreation article 32, page 483). needs, and control of pollution and toxicity in In environmental protection and both rural and urban areas.” (Agenda 21, chapter sustainable development 25, Objectives) Article 29 requires that children’s education be In individual health decisions directed to “the development of respect for the and the planning and provision natural environment”; article 24 requires that chil- of health services dren are informed (see page 359) about environ- The Convention upholds children’s rights to par- mental sanitation and it refers to the danger and ticipate in decisions about their health and health risks of environmental pollution (see page 358). care, and also in the planning and provision of The direct participation of children was high- health services relevant to them (see also article 1, lighted by the 1992 Earth Summit. The United page 7, and article 24, page 355). One aspect of Nations Conference on Environment and this is children’s evolving capacity to determine Development produced the Rio Declaration their own health care. In its General Comment on Environment and Development, in which No. 4 on “Adolescent health and development Principle 21 states: “The creativity, ideals and in the context of the Convention on the Rights courage of the youth of the world should be of the Child”, the Committee first asserts States’ mobilized to forge a global partnership in order general obligation: to achieve sustainable development and ensure a “To ensure that adolescent girls and boys better future for all.” The section of Agenda 21 have the opportunity to participate actively on “Children and youth in sustainable develop- in planning and programming for their own ment” emphasizes that children and youth should health and development...” (CRC/GC/2003/4, participate actively in all relevant decision- para. 39(d)) making processes, because these processes affect It goes on to address rights to consent to treat- their lives today and have implications for their ment: futures. The objectives include that “Each coun- “Before parents give their consent, adolescents try should, in consultation with its youth com- need to have a chance to express their views munities, establish a process to promote dialogue freely and their views should be given due between the youth community and Government weight, in accordance with article 12 of the at all levels, and to establish mechanisms that Convention. However, if the adolescent is of permit youth access to information and provide sufficient maturity, informed consent shall them with the opportunity to present their per- be obtained from the adolescent her/himself, spectives on government decisions, including the while informing the parents if that is in the ‘best interest of the child’ (art. 3). implementation of Agenda 21... Each country and Implementation Handbook for the Convention on the Rights of the Child 168

197 “With regard to privacy and confidentiality, their experiences with their peers and others, is critical both to effective prevention and to and the related issue of informed consent reducing stigmatization and discrimination. to treatment, States Parties should (a) enact States Parties must ensure that children who laws or regulations to ensure that confidential participate in these awareness-raising efforts advice concerning treatment is provided do so voluntarily, after being counselled, and to adolescents so that they can give their that they receive both the social support and informed consent. Such laws or regulations legal protection to allow them to lead normal should stipulate an age for this process, or lives during and after their involvement.” refer to the evolving capacity of the child; (Committee on the Rights of the Child, General and (b) provide training for health personnel Comment No. 3, 2003, CRC/GC/2003/3, para. 12) on the rights of adolescents to privacy and confidentiality, to be informed about planned In the media treatment and to give their informed consent One recommendation adopted following the Day to treatment.” (Committee on the Rights of i c of General Discussion on “The right of the child t l r the Child, General Comment No. 4, 2003, e a to be heard”, refers to the contribution of the CRC/GC/2003/4, paras. 32 and 33) media: Some countries have set an age from which chil- “The Committee recognizes the essential role dren are deemed to be able to consent to medical played by media in promoting awareness of treatment for themselves; in other countries, more the right of children to express their views and in line with the concept of evolving capacities of urges various forms of media, such as radio the child, no age is set but a principle exists that and television, to dedicate further resources the child acquires the right to make decisions for to including children in the development of himself or herself once judged to have “sufficient programmes and allowing for children to develop and lead media initiatives on their understanding”. In some instances it is linked to rights.” (Committee on the Rights of the Child, a presumption in law that a child of a certain age Report on the forty-third session, September 2006, does have sufficient maturity (see also article 1, Day of General Discussion, Recommendations, page 7). para. 36) The Committee also addresses participation In the outline for its Day of General Discussion rights of children in its General Comment No. 3 on “The child and the media”, the Committee on on “HIV/AIDS and the rights of the child”: the Rights of the Child emphasized the impor- “Children are rights holders and have a right to tance of the media in offering children the oppor- participate, in accordance with their evolving tunity to express themselves (see also article 17, capacities, in raising awareness by speaking page 218): out about the impact of HIV/AIDS on their lives “One of the principles of the Convention is and in the development of HIV/AIDS policies that the views of children be heard and given and programmes. Interventions have been due respect (art. 12). This is also reflected found to benefit children most when they are in articles about freedom of expression, actively involved in assessing needs, devising thought, conscience and religion (arts. 13 and solutions, shaping strategies and carrying 14). It is in the spirit of these provisions that them out rather than being seen as objects for children should not only be able to consume whom decisions are made. In this regard, the information material but also to participate participation of children as peer educators, themselves in the media. This requires that both within and outside schools, should there exist media which communicate with be actively promoted. States, international children. The Committee on the Rights of agencies and non-governmental organizations the Child has noted that there have been must provide children with a supportive and experiments in several countries to develop enabling environment to carry out their own child-oriented media; some daily newspapers initiatives, and to fully participate at both have special pages for children and radio and community and national levels in HIV policy television programmes also devote special and programme conceptualization, design, segments for the young audience. Further implementation, coordination, monitoring efforts are, however, needed...” (Committee and review. A variety of approaches are likely on the Rights of the Child, Report on the eleventh to be necessary to ensure the participation of session, January 1996, CRC/C/50, Annex IX, p. 81) children from all sectors of society, including mechanisms which encourage children, In asylum-seeking and other consistent with their evolving capacities, to immigration procedures express their views, have them heard and The principles of article 12(1) and (2) should given due weight in accordance with their be applied in all immigration procedures includ- age and maturity (art. 12, para. 1). Where ing asylum seeking, in relation to articles 10 appropriate, the involvement of children living and 22. with HIV/AIDS in raising awareness, by sharing RESPECT FOR THE VIEWS OF THE CHILD 169

198 juvenile justice system. Under article 37(d), any In its General Comment on “Treatment of un- child deprived of liberty has the right to prompt accompanied and separated children outside their access to legal and other assistance as well as country of origin”, the Committee comments: the right to challenge the legality of the depri- “Pursuant to article 12 of the Convention, vation of liberty before a court or other compe- in determining the measures to be adopted with regard to unaccompanied or separated tent body (see article 37, page 565). And under children, the child’s views and wishes should article 40(2)(b), the child alleged as or accused be elicited and taken into account (art. 12(1)). of infringing the penal law has similar rights to To allow for a well-informed expression of legal and other assistance and to participate in a such views and wishes, it is imperative that fair hearing, if necessary with the assistance of such children are provided with all relevant an interpreter (see article 40, page 613). information concerning, for example, their entitlements, services available including In its General Comment No. 10 on “Children’s means of communication, the asylum process, rights in Juvenile Justice”, the Committee high- i c t l r e a family tracing and the situation in their lights that the child’s article 12 rights should be country of origin (arts. 13, 17 and 22(2)). fully respected and implemented throughout In guardianship, care and accommodation every stage of the process of juvenile justice: arrangements, and legal representation, “The Committee notes that increasingly the children’s views should also be taken into voices of children involved in the juvenile account. Such information must be provided in justice system are becoming a powerful force a manner that is appropriate to the maturity for improvements and reform, and for the and level of understanding of each child. fulfilment of rights.” As participation is dependent on reliable communication, where necessary, interpreters The Committee goes on to comment on the obli- should be made available at all stages of the gations of the second paragraph of article 12: procedure.” (Committee on the Rights of the “It is obvious that for a child alleged as, Child, General Comment No. 6, 2005, accused of or recognized as having infringed CRC/GC/2005/6, para. 25) the penal law, the right to be heard is Refugee children – Guidelines on The 1994 fundamental for a fair trial. It is equally obvious that the child has the right to be heard published by the Office Protection and Care, directly and not only through a representative of the United Nations High Commissioner for or an appropriate body if it is in her/his best Refugees (UNHCR), emphasizes the impor- interests. This right of the child must be fully tance of the Convention’s general principles: observed in all stages of the process, starting non-discrimination, best interests of the child with pre-trial stage when the child has the and respect for the views of the child (articles 2, right to remain silent, as well as the right to Guidelines 3 and 12). The underlines the impor- be heard by the police, the prosecutor and the tance of seeking and taking seriously children’s investigating judge. But it also applies in the views and feelings, and enabling children to take stage of adjudication and disposition, and in the stage of implementation of the imposed part in decisions related to asylum seeking and measures. as refugees ( Refugee children – Guidelines on “... the child, in order to effectively participate Protection and Care , UNHCR, Geneva, 1994, pp. in the proceedings, must be informed not et seq 23 .). The UNHCR policy on refugee chil- only about the charges, but also about the dren states: “... Although vulnerable, children are juvenile justice process as such and about the also a resource with much to offer. The potential possible measures. The child should be given contributions of children must not be overlooked. the opportunity to express his/her views They are people in their own right, with sugges- concerning the (alternative) measures that may be imposed, and the specific wishes or tions, opinions and abilities to participate in deci- preferences he/she may have in this regard sions and activities that affect their lives. Efforts should be given due weight. Alleging that on behalf of refugee children fall short if they are the child is criminally responsible implies perceived only as individuals to be fed, immu- that he/she should be competent and able nized or sheltered, rather than treated as partici- to effectively participate in the decisions pating members of their community.” (UNHCR regarding the most appropriate response to Executive Committee Document EC/SCP/82 in allegations of his/her infringement of the , p. 171) Guidelines penal law. It may go without saying that the judges involved are responsible for and In the juvenile justice system make the decisions. But to treat the child as In addition to the general principles found in art- a passive object does not recognize his/her icle 12(1) and (2), articles 37 and 40 require legis- rights or contribute to an effective response lation and other measures to ensure the child’s to his/her behaviour. This also applies to the implementation of the measure imposed. participation in relation to involvement in the Implementation Handbook for the Convention on the Rights of the Child 170

199 Research shows that an active engagement In the work of the Committee and of the child in this implementation will in the reporting process under the most cases contribute to a positive result...” Convention (Committee on the Rights of the Child, General In recommendations adopted following its Day of Comment No. 10, 2007, CRC/C/GC/10, paras. 4(d) General Discussion on “The right of the child to and 23) be heard”, the Committee In recommendations adopted following its “... recognizes the impor tance of child Day of General Discussion on “The right of the participation in the work of the Committee and child to be heard”, the Committee refers to the encourages children and youth representatives United Nations Standard Minimum Rules for to submit information in the context of periodic reviews and stresses in particular the Administration of Juvenile Justice (“Beijing their important role in advocating for and Rules”) which provides (para. 14(2)) that “pro- monitoring of the implementation of the ceedings shall be conducted in an atmosphere i c t l concluding observations at the national level. r e a of understanding which shall allow the juve- “The Committee remains committed to nile to participate therein and to express herself exploring means of furthering participation or himself freely”. It also refers to the United of children in the work of the Committee, and Nations Guidelines for the Prevention of Juvenile in particular encourages more participation of Delinquency, the Riyadh Guidelines, which in children during pre-session country briefings particular emphasizes the importance of par- with civil society representatives.” (Committee ticipation in prevention as well as planning and on the Rights of the Child, Report on the forty- third session, September 2006, Day of General implementation: “For the purposes of the inter- Discussion, Recommendations, paras. 57 and 58) pretation of these guidelines, a child-centred ori- entation should be pursued. Young persons should This was in response to proposals from children, have an active role and partnership within society who participated in the General Discussion, that and should not be considered as mere objects of there should be a child member of the Committee, socialization or control” (para. 3). The Guidelines an advisory group of children to work with the goes on to propose active participation in delin- Committee and more direct contact with children quency prevention policies and processes, and in all aspects of its work. strengthened youth organizations given full par- In the recommendations, the Committee proposes ticipatory status in the management of commu- that States Parties nity affairs (for details, see article 40, page 601). “... actively involve children in the periodic The Committee reminds States Parties that, in review process of the Convention. It also urges order to ensure that the views of the children in children to play an active role in identifying conflict with the law are duly taken into account, human rights aspects in need of further the following must be provided as a minimum in attention and monitoring the implementation of concluding observations at the national order to ensure their participation in accordance level.” (Recommendations, para. 31) with articles 12 and 40 of the Convention: “... (a) adequate legal or other appropriate The Committee also proposes that non-govern- assistance; mental organizations, including national alli- (b) free access to an interpreter if the child ances on children’s rights, should engage directly cannot speak or understand the language with children in the process of “parallel report- used; ing” under the Convention. And the Committee (c) respect for his or her privacy during all encourages the presence of children during pre- stages of the proceedings; sessional country briefings with the Committee (d) recognition that the child has a right to (Recommendations, para. 34). participate freely and cannot be compelled to give testimony.” (Committee on the Rights of the Child, Report on the forty-third session, September 2006, Day of General Discussion, Recommendations, para. 48) Reporting guidelines: see Guidelines for Periodic Reports (Revised 2005) (CRC/C/58/Rev.1), Appendix 3, page 699. RESPECT FOR THE VIEWS OF THE CHILD 171

200 i c t l r e a Implementation Checklist General measures of implementation • Have appropriate general measures of implementation been taken in relation to article 12, including: identification and coordination of the responsible departments and agencies at all ■ ■ levels of government ( all departments affecting children directly or indirectly )? ■ identification of relevant non-governmental organizations/civil society partners? ■ ■ a comprehensive review to ensure that all legislation, policy and practice is compatible ■ with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation which includes where necessary the identification of goals and indicators of ■ ■ progress? ■ which does not affect any provisions which are more conducive to the rights of ■ the child? which recognizes other relevant international standards? ■ ■ ■ ■ which involves where necessary international cooperation? (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole). budgetary analysis and allocation of necessary resources? ■ ■ development of mechanisms for monitoring and evaluation? ■ ■ ■ making the implications of article 12 widely known to adults and children? ■ ■ ■ development of appropriate training and awareness-raising (in relation to article 12 all those working with or for children, and should include training for )? parenting education Specific issues in implementing article 12 • Is the obligation reflected in article 12(1) respected ■ in arrangements for the overall implementation of the Convention? ■ ■ in arrangements for preparing the State’s Initial and Periodic Reports under ■ the Convention? in arrangements for the development of legislation, policy and practice which may affect children ■ in central government? ■ ■ in regional/provincial government? ■ in local government? ■ ■ Is an obligation to respect article 12(1) included in legislation applying to ■ the child in the family environment? ■ ■ the process of adoption and adopted children? ■ ■ placement in alternative care and to the child in alternative care, whether ■ provided by the State or by others? Implementation Handbook for the Convention on the Rights of the Child 172

201 i c t l r e a see page XIX How to use the checklist, itutions and all educational services ■ all schools and other educational inst ■ affecting children? child protection? ■ ■ health services and institutions? ■ ■ local communities, planning and environmental decision-making affecting ■ ■ children, including in response to the proposals of Agenda 21? ■ child employment and vocational training or guidance? ■ all immigration procedures, including those affecting asylum-seeking children? ■ ■ the child in the juvenile justice system? ■ ■ Where age limits apply to the laws providing children with an opportunity to express ■ ■ are given due weight, are the limits in their views and requiring that their views accordance with article 12 and other articles ? Are the rights reflected in article 12 available to all children concerned, including ■ ■ children with disabilities, without discrimination, where necessary through the provision of interpreters, translations, special materials and technology? Have the implications for policy and practice of the UN Guidelines on Justice ■ ■ in Matters Involving Child Victims and Witnesses of Crime been appropriately considered? Have special arrangements been developed for child witnesses in both civil and ■ ■ criminal proceedings? ■ ■ Has there been adaptation to enable children’s participation, for example by not using intimidatory and confusing language, and by providing appropriate settings and procedures to enable children to be heard? Are there no situations in which a child is compelled to ■ ■ express views? ■ ■ give evidence in court or other proceedings? ■ Does the child in each case have access to adequate information to enable him or her ■ to express informed views and/or to play an informed role in decision-making? Has the State ensured that there are no matters affecting the child on which the child is, through legislation or otherwise, excluded from ■ ■ expressing views? having those views given due weight? ■ ■ In relation to paragraph 2 of article 12, are children provided with a right to be heard in all judicial or administrative proceedings affecting them, such as ■ criminal proceedings? ■ ■ ■ civil proceedings? education? ■ ■ RESPECT FOR THE VIEWS OF THE CHILD 173

202 i c t l r e a How to use the checklist, see page XIX ■ health? ■ child protection? ■ ■ ■ placement in alternative care? ■ ■ ■ adoption proceedings? ■ reviews under article 25? ■ ■ immigration and asylum seeking? ■ ■ ■ planning, housing and environment? ■ social security? ■ ■ ■ employment? ■ ■ any other? ■ Has the implementation and use of legislative provisions relating to children’s ■ participation been monitored? ■ ■ Do children have appropriate remedies for breaches of their rights guaranteed by article 12? Do children have appropriate access to effective independent complaints procedures in relation to ■ ■ family life, including ill-treatment? ■ ■ alternative care of all kinds? ■ ■ schools and education services? ■ ■ health services and institutions? ■ ■ employment? ■ ■ all forms of detention? ■ ■ all aspects of the juvenile justice system? ■ ■ environmental, planning, housing and transport issues? ■ ■ other services affecting children? ■ ■ In each case, do children have access to appropriate advice and advocacy? Do children have appropriate access to the media and opportunities to participate in the media, particularly ■ ■ radio? ■ ■ print media? ■ ■ television? ■ ■ Do children have opportunities for training in media skills enabling them to relate to and use the media in a participatory manner? ■ ■ Are the participatory rights of children within the family promoted through parenting education and preparation for parenthood? Implementation Handbook for the Convention on the Rights of the Child 174

203 i c t l r e a see page XIX How to use the checklist, Is training to promote the participatory rights of children provided for judges, including family court and juvenile court judges? ■ ■ probation officers? ■ ■ ■ ■ police officers? ■ ■ prison officers? ■ immigration officers? ■ teachers? ■ ■ health workers? ■ ■ ■ ■ social workers? ■ other professionals? ■ Reminder : The Convention is indivisible and its articles interdependent. Article 12 has been identified by the Committee on the Rights of the Child as a general principle of relevance to implementation of the whole Convention. Particular regard should be paid to: The general principles Article 2: all rights to be recognized for each child in the jurisdiction without discrimination on any ground Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 6: right to life and maximum possible survival and development All other articles require consideration of the child’s right to be heard, and to have his or her views taken seriously. Specifically, the child has a right to be heard in relation to any judicial or administrat- ive proceedings affecting the child, relevant to, for example, articles 9, 10, 21, 25, 37, 40. Also linked to the child’s participation rights are articles 13 (freedom of expression), article 14 (freedom of thought, conscience and religion) and article 15 (freedom of association). RESPECT FOR THE VIEWS OF THE CHILD 175

204 UNICEF/HQ-99-0243/Horner

205 c l i t e r a Child’s right to freedom of expression ... Text of Article 13 1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice. 2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; or ordre public (b) For the protection of national security or of public order ( ), or of public health or morals. his is one of a series of articles in the have them taken seriously under article 12, and Convention on the Rights of the Child to the following two articles: on freedom of thought, conscience and religion and on free- which confirm that civil rights guaran- T dom of association. In addition, article 17 covers teed for “everyone” in the Universal the child’s access to appropriate informa- Declaration of Human Rights and the Inter- tion and material. In its examination of reports, national Covenant on Civil and Political Rights Summary the Committee on the Rights of the Child has do apply to children. The first paragraph sets out emphasized that the child is the subject of rights, the right to freedom of expression – to “seek, the possessor of rights, and that the civil rights of receive and impart” information and ideas of children should be recognized explicitly in the all kinds, and the second paragraph limits the law. Article 30 asserts the linked cultural, reli- restrictions that may be applied to the child’s gious and linguistic rights of the children of exercise of this right. minorities and indigenous communities, and art- The right to freedom of expression is closely icle 31, the right of the child to engage in play linked to the child’s right to express views and and recreation and in cultural life and the arts. ■ CHILD’S RIGHT TO FREEDOM OF EXPRESSION 177

206 “In the light of articles 13, 14 and 15, the The child’s right to freedom Committee is concerned that the State Party of expression has not taken all legal and other appropriate measures to promote and implement those The Universal Declaration of Human Rights, in rights ... its article 19, guarantees: “Everyone has the right “The Committee recommends that the State to freedom of opinion and expression; this right Party take all appropriate measures, including includes freedom to hold opinions without inter- legal means, to fully implement articles 13, 14 ference and to seek, receive and impart informa- and 15 of the Convention ...” (Myanmar tion and ideas through any media and regardless CRC/C/15/Add.69, paras. 16 and 37) of frontiers.” Article 19 of the International The Committee has frequently noted that the Covenant on Civil and Political Rights contains implementation of article 13 and linked civil similar wording. rights needs further development. For example: i c t In a 1989 General Comment, the Human Rights l r e “The Committee is generally concerned that a Committee emphasizes that children should ben- inadequate attention has been given to the promotion of civil rights and freedoms of the efit from civil rights. The Committee points out child, as provided for in articles 13, 14, 15, 16, that the rights providing specifically for children and 17 of the Convention. Information before in article 24 of the Covenant, “are not the only the Committee indicates that traditional ones that the Covenant recognizes for children and social attitudes regarding the role of children that, as individuals, children benefit from all of the appear to make it difficult to accept children civil rights enunciated in the Covenant...” (Human fully as the subjects of rights. The Committee Rights Committee, General Comment No. 17, urges the State Party to redouble its efforts 1989, HRI/GEN/1/Rev.8, para. 2, p. 183) to educate and sensitize parliamentarians and government officials, professional groups, But as the Manual on Human Rights Reporting, parents and children on the importance of comments on children’s civil rights: “The 1997, accepting fully the concept of child rights, prevailing reality was however, and to a cer- and recommends that legislative measures be tain extent still is, that children, in view of their envisaged to guarantee the enjoyment of civil evolving maturity, are in practice not recognized rights and freedoms for every child.” (Barbados as having the necessary capacity or competence CRC/C/15/Add.103, para. 18) to exercise them. By their clear incorporation in “The Committee is concerned that the the Convention, an undeniable statement is made reference in the report to information as to their entitlement and ability to fully enjoy contained in the Initial Report indicates that such fundamental freedoms.” ( , pp. 434 Manual very little or no progress has taken place with and 435) respect to the implementation of articles 13 to 17 of the Convention on these matters. Manual notes that articles 13 to 17 consti- The “The Committee recommends that the State tute an important chapter of the Convention on Party actively promote the implementation of the Rights of the Child, indicating the need to these rights by, among other things, making envisage the child as an active subject of rights. children more aware of these rights and by “States are required to recognize them in the law facilitating their active use in daily practice and and to determine therein how their exercise may report on the progress made in this regard in be ensured. It is therefore not sufficient for the (Syrian Arab Republic CRC/C/15/ the next report.” Add.212, paras. 34 and 35) Constitution simply to include them as fundamen- tal rights. In fact, constitutional and/or legal pro- The Committee has continued to draw attention visions should further indicate how these rights to traditional attitudes which hinder enjoyment specifically apply to children, which mechanisms by the child of the right to freedom of expression have been established to protect them in an effec- (see also article 12, page 154). For example: tive manner and which remedies are provided in “The Committee is concerned at the lack of , p. 434) case of their violation.” ( Manual legal guarantees for the freedom of expression for children below 18 years of age. It is also The Committee on the Rights of the Child has concerned at the inadequate attention being emphasized that, in the case of children, it is not given to the promotion of and respect for the enough that these principles should be reflected right of the child to freedom of expression and in constitutions as applying to “everyone”. The that prevailing traditional societal attitudes, in Committee expects to see the child’s right to free- the family and in other settings regarding the dom of expression expressly guaranteed in legis- role of children, appear to make it difficult for lation (and the article requires that any restrictions children to seek and impart information freely. on the right are set out in legislation – see below). “The Committee recommends that the State Party take all appropriate measures, including For example, the Committee commented: Implementation Handbook for the Convention on the Rights of the Child 178

207 amendments to legislation, to promote and provide children with new opportunities to seek guarantee the right of the child to freedom of and impart information regardless of frontiers or expression within the family, in the school and adult restrictions. And in one case, the Committee (Georgia other institutions and in society.” expressed concern at CRC/C/15/Add.222, paras. 28 and 29) “... allegations that Internet chat rooms, set up independently by teenagers, have been “The Committee welcomes the guarantee of arbitrarily closed down by the authorities.” freedom of expression under article 22 of the (Republic of Korea CRC/C/15/Add.197, para. 36) Constitution, but recognizes that there is a vacuum in the legislative acts on the practical The Committee has expressed concerns to States ways to implement this right for children, about limitations of the freedom of expression as noted by the State Party in its report. and freedom of association of children in schools, Furthermore, the Committee is concerned that including in its first General Comment on “The the prevailing attitudes in the family, in school, aims of education”: in other institutions and in society at large are i c t l r e a not conducive to the enjoyment of this right. “... the article [article 29] attaches importance “The Committee encourages the State Party to the process by which the right to education to take all appropriate measures, including is to be promoted. Thus, efforts to promote legal means, to fully implement article 13, the enjoyment of other rights must not be and to introduce measures to promote and undermined, and should be reinforced, by the guarantee the right of the child to freedom of values imparted in the educational process. (Albania CRC/C/15/Add.249, expression.” This includes not only the content of the paras. 36 and 37) curriculum but also the educational processes, the pedagogical methods and the environment The Committee has proposed monitoring and within which education takes place, whether research to determine to what extent children’s it be the home, school, or elsewhere. Children civil rights are respected, within and outside do not lose their human rights by virtue of the family. The Committee has also encouraged passing through the school gates. Thus, for States to look at the implementation of the child’s example, education must be provided in a way right to freedom of expression in various settings, that respects the inherent dignity of the child, enables the child to express his or her views including within the family. freely in accordance with article 12(1) and to In its outline for the Day of General Discussion participate in school life...” (Committee on the on “The role of the family in the promotion of the Rights of the Child, General Comment No. 1, 2001, rights of the child”, the Committee commented: CRC/GC/2001/1, para. 8) “The civil rights of the child begin within the In relation to freedom of expression and free- family ... The family is an essential agent for dom of association in schools, the Committee has creating awareness and preservation of human expressed concerns to Japan, rights, and respect for human values, cultural “... about restrictions on political activities identity and heritage, and other civilizations. undertaken by schoolchildren both on and off There is a need to consider appropriate school campuses...” ways of ensuring balance between parental authority and the realization of the rights It went on to recommend of the child, including the right to freedom “... that the State Party review legislation and of expression. Corresponding measures to regulations governing activities undertaken prevent abrogation of these rights of the by schoolchildren on and off campus...” (Japan child within the family should be discussed.” CRC/C/15/Add.231, paras. 29 and 30) (Committee on the Rights of the Child, Report on the fifth session, January 1994, CRC/C/24, It found similar concerns when it examined the Annex V, p. 63) Republic of Korea’s Second Report: The Committee has also stressed the important “The Committee is concerned at the limitations role of the media in “offering children the possi- on students’ freedom of expression and association due to strict administrative control bility of expressing themselves”. Article 17 (see of student councils and school regulations page 217) concerns the role of the mass media that limit or prohibit outside political activities and ensuring that the child has access to a wide of students in elementary and secondary variety of information and material. In the report schools... of its General Discussion on “The child and the “In the light of articles 12 to 17 of the media”, the Committee promoted children’s par- Convention, the Committee recommends that ticipatory rights in relation to the media (see art- the State Party amend legislation, guidelines icle 12, page 169 and article 17, page 218). The issued by the Ministry of Education and school Internet and modern information and commu- regulations to facilitate children’s active participation in decision-making processes and nications technology, including mobile phones, CHILD’S RIGHT TO FREEDOM OF EXPRESSION 179

208 in political activities both within and outside (c) Urging private entities that provide services to schools and ensure that all children fully enjoy the general public, including through the Internet, their right to freedom of association and to provide information and services in accessible expression.” (Republic of Korea CRC/C/15/Add.197, and usable formats for persons with disabilities; paras. 36 and 37) (d) Encouraging the mass media, including pro- The Committee has expressed concerns about viders of information through the Internet, to restrictions on the wearing of religious symbols make their services accessible to persons with or clothing, raising issues under article 14, the disabilities; child’s right to freedom of religion, as well as (e) Recognizing and promoting the use of sign article 13 (for details, see article 14, page 185). languages.” (Article 21) Of particular importance to children’s freedom The United Nations Rules for the Protection of of expression is the right to engage in play and Juveniles Deprived of their Liberty, which the i c recreational activity and to participate freely in t l r e a Committee has promoted as providing relevant cultural life and the arts (see article 31, page 469). standards for implementation, states in rule 13: Article 30 asserts the particular rights of freedom “Juveniles deprived of their liberty shall not for of expression of children belonging to minori- any reason related to their status be denied the ties or indigenous communities to enjoy their civil, economic, political, social or cultural rights own culture, practice and profess their own reli- gion, and use their own language (see article 30, to which they are entitled under national or inter- page 455). national law, and which are compatible with the deprivation of liberty, such as social security Ensuring the freedom of expression rights of rights and benefits, freedom of association and, children with disabilities may require special upon reaching the minimum age established by attention. The Committee’s General Comment law, the right to marry.” Thus aspects of freedom No. 9 on “The rights of children with disabili- of expression not incompatible with deprivation ties” emphasizes that all universal civil rights and of liberty must be preserved in all forms of the freedoms, including freedom of expression, must restriction of liberty. be respected and promoted for all children with disabilities: Restrictions on child’s right: “Particular attention should be focused here article 13(2) on areas where the rights of children with disabilities are more likely to be violated or Restrictions on the child’s right to freedom of where special programmes are needed for expression are strictly limited by the provisions of their protection.” (Committee on the Rights of paragraph 2 of the article. The restrictions are the the Child, General Comment No. 9, 2006, same as those applied to “everyone’s” freedom CRC/C/GC/9, para. 34) of expression in article 19 of the International The Convention on the Rights of Persons with Covenant on Civil and Political Rights. Any Disabilities, adopted in December 2006, states: restrictions must be set out in legislation and “States Parties shall take all appropriate measures must be “necessary” for one of the two purposes to ensure that persons with disabilities can exer- set out in subparagraphs (a) and (b) of article 13. cise the right to freedom of expression and opin- The Committee, in its examination of States ion, including the freedom to seek, receive and Parties’ reports, has also challenged limits on any impart information and ideas on an equal basis restrictions on children’s civil rights, including with others and through all forms of communica- freedom of expression and freedom of association tion of their choice, as defined in article 2 of the and peaceful assembly: present Convention, including by: “The Committee is concerned about the (a) Providing information intended for the general limitations on the exercise of the right public to persons with disabilities in accessible to freedom of expression by children. formats and technologies appropriate to different The Committee notes with concern the kinds of disabilities in a timely manner and with- violent incidents during a peaceful student out additional cost; demonstration against a rise in bus fares, which took place in the village of Benque Viejo (b) Accepting and facilitating the use of sign lan- del Carmen on 24 April 2002, and the reported guages, Braille, augmentative and alternative disproportionate use of force by the police communication, and all other accessible means, authorities. modes and formats of communication of their “The Committee recommends that the State choice by persons with disabilities in official Party encourage and facilitate the exercise interactions; by children of their right to freedom of Implementation Handbook for the Convention on the Rights of the Child 180

209 expression, including their right to freedom (and more recently in reservations and declara- of association and of peaceful assembly, so tions made by some States upon ratifying the that they can freely discuss, participate and Convention) concerns the role of parents in rela- express their views and opinions on all matters tion to children’s civil rights, including the right (Belize CRC/C/15/Add.252, affecting them.” to freedom of expression. During the drafting paras. 38 and 39) process, a general proposal, that the Convention should confirm explicitly that the civil and “The Committee is concerned that although the freedoms of expression and assembly political rights accorded to “everyone” in the are formally recognized in the Constitution, Universal Declaration of Human Rights and the the exercise of these rights by children are International Covenant on Civil and Political restricted by vaguely worded limitation clauses Rights do apply to children, met with some oppo- (i.e. ‘in accordance with Islamic criteria’), which sition at first. The need to acknowledge the par- potentially exceed the permitted restrictions ents’ role was emphasized. An early draft of what set out in paragraph 2 of articles 13 and 15 of i c t l r e a was to become article 13 stated: “Nothing in this the Convention. The Committee is concerned article shall be interpreted as limiting or other- at reports of incidents of threats and violence by vigilante groups, such as Ansari-Hezbollah, wise affecting the authority, rights or responsi- directed at persons seeking to exercise or to bilities of a parent or other legal guardian of the promote the exercise of these rights. child.” But discussion proceeded to agree that “The Committee recommends that the State while children might need direction and guid- Party establish clear criteria to assess whether ance from parents or guardians in the exercise a given action or expression is in accordance of these rights, this does not affect the content with interpretations of Islamic texts, and of the rights themselves, and also that the evolv- consider appropriate and proportionate means ing capacities of the child must be respected (E/ to protect public morals while safeguarding the right of every child to freedom of CN.4/1986/39, p. 17; E/CN.4/1987/25, pp. 26 and (Islamic Republic of expression and assembly.” 27; E/CN.4/1988/28, pp. 9 to 13; Detrick, pp. 230 Iran CRC/C/15/Add.123, paras. 33 and 34) et seq .). It repeated its concerns when it examined Iran’s These formulas find general expression in article 5 Second Report: of the Convention, requiring States to respect the “The Committee remains concerned that, “responsibilities, rights and duties” of parents although freedom of expression and of and others “to provide, in a manner consistent assembly is formally recognized in the with the evolving capacities of the child, appro- Constitution, the protection of this freedom priate direction and guidance in the exercise by is restricted by the requirement to interpret it the child of the rights recognized in the present in accordance with Islamic principles without Convention” (see article 5, page 75). This role for clarifying at the outset the basis on which an parents is repeated in article 14 (the child’s right action or expression is considered to be in keeping with such principles. to freedom of thought, conscience and religion, “The Committee reiterates its see page 185) but not in articles 13 or 15. recommendation, expressed in its previous Various States have issued declarations or reser- concluding observations, that the State Party vations concerning the relationship between par- establish clear criteria for determining whether ents and their children’s civil rights, which include a given action or expression is in accordance with Islamic law and the Convention in order article 13. When examining Initial Reports, the (Islamic to avoid arbitrary interpretations.” Committee has consistently asked for a review Republic of Iran CRC/C/15/Add.254, paras. 39 and withdrawal of reservations; in particular, the and 40) Committee has expressed concern at reservations that suggest a lack of full recognition of the child Article 17(e) of the Convention, on the mass as a subject of rights. media and other information sources, requires States to: “Encourage the development of appro- Other declarations and reservations relate to priate guidelines for the protection of the child potential restrictions on freedom of expression from information and material injurious to his and other civil rights. A reservation made by or her well-being, bearing in mind the provisions Austria states: “Article 13 and article 15 of the of articles 13 and 18.” Thus any guidelines must Convention will be applied provided that they be consistent with the right to freedom of expres- will not affect legal restrictions in accordance sion and with the restrictions allowed under with article 10 and article 11 of the European article 13(2). Convention on the Protection of Human Rights and Fundamental Freedoms of 4 November One particular issue raised during the draft- ing of the Convention on the Rights of the Child 1950.” CHILD’S RIGHT TO FREEDOM OF EXPRESSION 181

210 The European Convention has a wider definition (b) For the protection of national security or of of permitted restrictions in its article on freedom ), or of public health or ordre public public order ( of expression (article 10(2)): “The exercise of these morals.” freedoms, since it carries with it duties and respon- The General Comment states: “Paragraph 3 sibilities, may be subject to such formalities, con- expressly stresses that the exercise of the right ditions, restrictions or penalties as are prescribed to freedom of expression carries with it spe- by law and are necessary in a democratic soci- cial duties and responsibilities and for this rea- ety, in the interests of national security, territorial son certain restrictions on the right are permitted integrity or public safety, for the prevention of dis- which may relate either to the interests of other order or crime, for the protection of health or mor- persons or to those of the community as a whole. als, for the protection of the reputation or rights of However, when a State Party imposes certain others, for preventing the disclosure of informa- restrictions on the exercise of freedom of expres- tion received in confidence, or for maintaining the sion, these may not put in jeopardy the right itself. i c t l r e a authority and impartiality of the judiciary.” Paragraph 3 lays down conditions and it is only subject to these conditions that restrictions may When it examined Austria’s Second Report, the be imposed: the restrictions must be ‘provided Committee noted by law’; they may only be imposed for one of the “... the explanation by the delegation for the purposes set out in subparagraphs (a) and (b) of non-withdrawal of the reservations to articles paragraph 3; and they must be justified as being 13, 15 and 17, but remains of the opinion that the reservations are – particularly in the light ‘necessary’ for that State Party for one of those of the Vienna Declaration and Plan of Action purposes.” adopted by the World Conference on Human The Human Rights Committee notes that not Rights in 1993 – not necessary. all countries have provided information in their “The Committee recommends that the State reports under the Covenant on “all aspects of Party reconsider the need for maintaining the existing reservations and continue the freedom of expression. For instance, little and complete its review with a view to the attention has so far been given to the fact that, withdrawal of the reservations in line with because of the development of modern mass the Vienna Declaration and Plan of Action.” media, effective measures are necessary to pre- (Austria CRC/C/15/Add.251, paras. 6 and 7) vent such control of the media as would interfere with the right of everyone to freedom of expres- The Human Rights Committee, in its General sion in a way that is not provided for in para- Comment on the equivalent article 19 in the graph 3. International Covenant on Civil and Political Rights, emphasizes that it is the interplay between “Many States’ reports confine themselves to the principle of freedom of expression and any mentioning that freedom of expression is guaran- imposed limitations and restrictions that deter- teed under the Constitution or the law. However, mines the actual scope of the individual’s right. in order to know the precise regime of freedom of Paragraph 3 of article 19 states that the exercise expression in law and in practice, the Committee of the right to freedom of expression “carries with needs in addition pertinent information about the it special duties and responsibilities. It may there- rules which either define the scope of freedom of fore be subject to certain restrictions, but these expression or which set forth certain restrictions, shall only be such as are provided by law and are as well as any other conditions which in practice necessary: affect the exercise of this right...” (Human Rights Committee, General Comment No. 10, 1983, (a) For respect of the rights or reputations of others; HRI/GEN/1/Rev.8, para. 3, p. 171) Reporting guidelines: see Guidelines for Periodic Reports (Revised 2005) (CRC/C/58/Rev.1), Appendix 3, page 699. Implementation Handbook for the Convention on the Rights of the Child 182

211 i c t l r e a Implementation Checklist • General measures of implementation Have appropriate general measures of implementation been taken in relation to article 13, including: identification and coordination of the responsible departments and agencies at all ■ ■ departments of family affairs, levels of government (article 13 is relevant to )? welfare, education, media and communication ■ identification of relevant non-governmental organizations/civil society partners? ■ a comprehensive review to ensure that all legislation, policy and practice is ■ ■ compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation ■ which includes where necessary the identification of goals and indicators of ■ progress? ■ ■ which does not affect any provisions which are more conducive to the rights of the child? ■ which recognizes other relevant international standards? ■ ■ ■ which involves where necessary international cooperation? (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole.) ■ ■ budgetary analysis and allocation of necessary resources? development of mechanisms for monitoring and evaluation? ■ ■ ■ ■ making the implications of article 13 widely known to adults and children? ■ development of appropriate training and awareness-raising (in relation to article 13 ■ likely to include the training of all those working with or for children and their families, and parenting education )? Specific issues in implementing article 13 • ■ ■ Is the child’s right to freedom of expression as guaranteed in article 13 explicitly recognized in legislation? Do policy and practice actively encourage the child’s freedom of expression? ■ ■ Do law, policy and practice support the child’s right to freedom of expression, as set out in article 13, in relation to the family? ■ ■ alternative care? ■ ■ schools? ■ ■ juvenile justice institutions? ■ ■ the community? ■ ■ the media? ■ ■ Are the only permitted restrictions on the right to freedom of expression consistent ■ ■ with those set out in paragraph 2 of article 13 and are they defined in legislation? CHILD’S RIGHT TO FREEDOM OF EXPRESSION 183

212 i c t l r e a How to use the checklist, see page XIX In particular, are any restrictions on the child’s right to contribute to and to publish ■ ■ school and other publications consistent with those set out in paragraph 2? Are special measures taken to ensure the freedom of expression of children with ■ ■ disabilities? ■ Has the State taken any specific measures to encourage and facilitate children’s ■ access to the media? ■ ■ Is there any provision for consideration and resolution of complaints from children regarding breaches of their right to freedom of expression? Reminder : The Convention is indivisible and its articles interdependent. Article 13 should not be considered in isolation. Particular regard should be paid to: The general principles Article 2: all rights to be recognized for each child in the jurisdiction without discrimination on any ground Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 6: right to life and maximum possible survival and development Article 12: respect for the child’s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child Closely related articles Articles whose implementation is particularly related to that of article 13 include: Article 5: parental responsibilities and child’s evolving capacities Article 15: freedom of association Article 17: access to appropriate information; role of the mass media Article 29: aims of education Article 30: cultural, religious and language rights of children of minorities and indigenous communities Article 31: child’s rights to play, to recreation and to participation in cultural life and the arts. Implementation Handbook for the Convention on the Rights of the Child 184

213 c l i t e r Child’s right a to freedom of thought, conscience and religion ... Text of Article 14 1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. rticle 14 of the Convention on the with the child’s evolving capacities. Paragraph 3 Rights of the Child confirms for the sets out the very limited restrictions allowed on child the fundamental civil right to the child’s freedom to manifest his or her freedom of thought, conscience and A religion or belief. religion, which is upheld for “everyone” in the The Initial Reports of many States simply Universal Declaration of Human Rights and the recorded that this right is reflected in their International Covenant on Civil and Political Constitutions and applies equally to children. It is Rights. The second paragraph, echoing article 5 apparent from a range of declarations and reserva- of the Convention, requires respect for the role Summary tions that, in some States, the right of the child to of parents in providing direction to the child “in freedom of religion conflicts with tradition and, a manner consistent with the evolving capacities in some cases, with legislation. Few States appear of the child”. The International Covenant as yet to have reflected the child’s right in domes- requires respect for the liberty of parents to tic legislation, and in many, it is parents who ensure the religious and moral education of their determine the child’s religion. The Committee children in conformity with their own convic- has expressed particular concern at arrangements tions, but the emphasis in the Convention on the for religious education in schools which do not Rights of the Child is on the freedom of religion of the child, with parental direction consistent respect children’s freedom of religion. ■ CHILD’S RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION 185

214 as, conscientious objectors; the reasons given Freedom of thought to justify conscientious objection and the rights and duties of conscientious objectors as com- Children’s right to freedom of thought provokes pared with those persons who serve in the regu- little controversy or comment in States’ succes- Manual on Human Rights lar military service”. ( sive reports or from the Committee. The concept 1991, p. 108) Reporting, of freedom of thought is linked to the right to form and express views, in article 12. The prac- Freedom of religion tical implementation of freedom of thought is related to the freedom to seek, receive and impart Article 14 protects the child’s right to freedom of information and ideas of all kinds, under article religion, which is an absolute right, and to mani- 13; to the child’s access to appropriate informa- fest his or her religion, which may be subject to tion, under article 17; and to the child’s education, the very limited restrictions outlined in para- under articles 28 and 29. The child’s right to pri- i c t l r e graph 3. a vacy, in article 16, implies that children cannot be forced to reveal their thoughts. In addition, article 30 of the Convention (see page 455) upholds the right of a child who belongs to There are no restrictions on the right to freedom an ethnic, religious or linguistic minority or who of thought. Paragraph 2 requires respect for the is indigenous “to profess and practise his or her rights and duties of parents and others to provide own religion...” And in arranging alternative direction to the child in the exercise of the right, care, under article 20, States must pay due regard consistent with the child’s evolving capacities. to the child’s religious background (see below, page 189). Freedom of conscience What freedom of religion means Again, the Convention on the Rights of the Child Article 18(1) of the International Covenant on provides no restrictions to the child’s right to Civil and Political Rights expands on the right to freedom of conscience, but paragraph 2 of arti- freedom of religion: “... This right shall include cle 14 allows for parents’ direction. Issues of con- freedom to have or to adopt a religion or belief science might arise, for example, concerning diet, of his choice, and freedom, either individually or such as vegetarianism, or environmental issues. in community with others and in public or pri- One issue of conscience on which there are var- vate, to manifest his religion or belief in worship, ious human rights recommendations, but no observance, practice and teaching.” The second explicit mention in the Universal Declaration of paragraph states: “No one shall be subject to Human Rights and the International Covenant on coercion which would impair his freedom to have Civil and Political Rights, or in the Convention, or to adopt a religion or belief of his choice.” is that of conscientious objection to military The Human Rights Committee issued a lengthy service. The Convention, in article 38, prohib- General Comment on article 18 in 1993. It empha- its recruitment into the armed forces of anyone sizes that the terms “religion” and “belief ” are to under the age of 15 and the Optional Protocol be broadly construed, protecting theistic, non- on the involvement of children in armed conflict theistic and atheistic beliefs as well as the right requires States to ensure no compulsory recruit- not to profess any religion or belief. The article ment of children under 18 years (see page 659). “does not permit any limitations whatsoever on Conscientious objection remains a real issue for the freedom of thought and conscience or on 15- to 18-year-olds in some countries. In addition, the freedom to have or adopt a religion or belief some countries contain militaristic youth organi- of one’s choice”. No one can be compelled to zations and include some form of military train- reveal his adherence to a religion or belief: this ing within the education system; if compulsory, is assured by article 18 and by the right to pri- these could conflict with article 14. vacy set out in article 17 of the Covenant (Human The first edition of the Manual on Human Rights Rights Committee, General Comment No. 22, , 1991, in a commentary on the right to Reporting 1993, HRI/GEN/1/Rev.8, para. 2, p. 195). The freedom of thought, conscience and religion in child’s right to privacy is echoed in article 16 of article 18 of the International Covenant on Civil the Convention on the Rights of the Child. and Political Rights, suggests that “the status and The Committee on the Rights of the Child has position of conscientious objectors should be dis- expressed concern at restrictions on children’s cussed under this article, and statistical informa- freedom of religion and quoted other interna- tion should be provided regarding the number tional instruments and the recommendations of of persons that applied for the status of, and the other Treaty Bodies. For example: number of those that were actually recognized Implementation Handbook for the Convention on the Rights of the Child 186

215 “The Committee emphasizes that the enacting or rescinding legislation, to prevent and eliminate discrimination on the grounds human rights of children cannot be realized of religion or belief and ensure that members independently from the human rights of their of minority religions are not imprisoned or parents, or in isolation from society at large. otherwise ill-treated on account of their In the light of article 14 of the Convention, religion and that access to education for the 1981 Declaration on the Elimination of All their children is provided on an equal footing Forms of Intolerance and of Discrimination (Islamic Republic of Iran CRC/C/15/ with others.” Based on Religion or Belief (General Assembly Add.254, paras. 41 and 42) resolution 36/55), Commission on Human Rights resolution 2000/33, the Human Rights “With reference to the findings of the Committee’s General Comment No. 22, and Special Rapporteur on freedom of religion or concurring with the findings of the Human belief during his visit to Algeria in 2002 (see Rights Committee (CCPR/C/79/Add.25) and E/CN.4/2003/66/Add.1) and the interpretative the Committee on Economic, Social and declaration of the State Party to article 14 of i c t l r Cultural Rights (E/C.12/1993/7), the Committee e a the Convention, the Committee is concerned is concerned at the restrictions on the that the right of the child to freedom of freedom of religion, and that restrictions on thought, conscience and religion is not fully the freedom to manifest one’s religion do respected and protected. not comply with the requirements outlined “In the light of article 14 of the Convention, in article 14, paragraph 3. The Committee the Committee recommends that the State is especially concerned at the situation Party respect the right of the child to freedom of members of non-recognized religions, of thought, conscience and religion by taking including the Baha’is, who experience effective measures to prevent and eliminate discrimination in areas of, inter alia , education, all forms of discrimination on the grounds of employment, travel, housing and the religion or belief and by promoting religious enjoyment of cultural activities. tolerance and dialogue in society...” (Algeria “The Committee recommends that the State CRC/C/15/Add.269, paras. 37 and 38) Party take effective measures to prevent and eliminate discrimination on the grounds “While noting the adoption of the Regional of religion or belief in the recognition, Ethnic Autonomy Act in 2001, which exercise and enjoyment of human rights guarantees freedom of religion for ethnic and fundamental freedoms in all fields of minorities in mainland China, the Committee civil, economic, political, social and cultural is concerned about reports that children, in life. The Committee recommends that the particular Tibetan Buddhist, Uighur and Hui State Party make every effort to enact or children, have been restricted in studying rescind, where necessary, legislation to and practising their religion, and in some prohibit any such discrimination, and take cases have been detained for participating all appropriate measures, including public in religious activities. It is also concerned at education campaigns, to combat intolerance reports that children of families practising their on the grounds of religion or other belief. The religion, notably the Falun Gong, are subject Committee endorses the recommendations to harassment, threats and other negative made by the Special Rapporteur on the actions, including re-education through labour. question of religious intolerance following The Committee notes the information provided his visit to the State Party (E/CN.4/1996/95/ about the Gedhun Choekyi Nyima, but remains Add.2) and recommends that the State Party concerned that it has not yet been possible implement them fully.” (Islamic Republic of Iran to have this information confirmed by an CRC/C/15/Add.123, paras. 35 and 36) independent expert. “The Committee recommends that the State The Committee followed this up when it exam- Party take all necessary measures to ensure ined Iran’s Second Report: the full implementation of the Regional Ethnic “The Committee is concerned that little Autonomy Act. In particular, the Committee progress has been made in the area of recommends that the State Party: freedom of religion and notes that members (a) Enact legislation explicitly guaranteeing of unrecognized religions continue to be freedom of religion for those under 18 that discriminated against and do not have the is not tied to a limited number of recognized same rights as those of recognized religions, faiths, and which respects the rights and duties for example with regard to access to social of parents to give guidance to their children in services. In addition, it continues to be the exercise of their rights in this regard in a concerned at reports that these minorities, in manner consistent with the evolving capacities particular the Baha’i minority, are subjected to of the child; harassment, intimidation and imprisonment on (b) Repeal any ban instituted by local account of their religious beliefs. authorities on children of any age from “The Committee recommends that the State participating in Tibetan religious festivals or receiving religious education; Party take effective measures, including CHILD’S RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION 187

216 (c) Repeal any ban instituted by local (see discussion of religious education in schools, authorities on children of any age from below, page 188). attending mosques or receiving religious Yet article 14 of the Convention on the Rights of education throughout the mainland; the Child refers unambiguously to the right of the (d) Take all necessary measures to ensure that child to freedom of religion. The second para- children may choose whether to participate in classes on religion or atheism; graph refers to the “rights and duties” of parents (e) Allow an independent expert to visit and rather than to their “liberty”. Similar to the gen- confirm the well-being of Gedhun Choekyi eral statement given in article 5, article 14 requires Nyima while respecting his right to privacy, States to “respect the rights and duties of the par- and that of his parents.” (China CRC/C/CHN/ ents and, when applicable, legal guardians, to pro- CO/2, paras.44 and 45) vide direction to the child in the exercise of his or her right in a manner consistent with the evolv- “The Committee is concerned that the right of the child to freedom of thought, conscience i c ing capacities of the child”. But it is the child who t l r e a and religion is not fully respected and exercises the right. Parents can provide direc- protected. The Committee is concerned about tion, but the direction must be consistent with the hate speech against religious minorities in child’s evolving capacities and must be applied schools and mosques. in conformity with the whole of the Convention. “In the light of article 14 of the Convention, “Direction” cannot involve, for instance, any form the Committee recommends that the State of physical or mental violence (article 19). And the Party respect the right of the child to freedom child’s views must be taken seriously: article 12 of thought, conscience and religion by taking preserves the right of all children who can form effective measures to prevent and eliminate all forms of discrimination on the grounds of views to express their views freely “in all matters religion or belief and by promoting religious affecting the child”, which includes matters of tolerance and dialogue in society.” (Saudi religion and choice of religion; article 13 upholds Arabia CRC/C/SAU/CO/2, paras. 40 and 41) the child’s freedom of expression. “The Committee is concerned that in The wording of article 14 and the Convention art- Turkmenistan religious organizations icles identified as general principles certainly do encounter difficulties related to the procedure not support the concept of children automatically for their registration and face restrictions with following their parent’s religion until the age of respect to the exercise of their activities. The 18, although article 8 (preservation of identity), Committee is also concerned at reports of article 20 (preservation of religion when deprived instances of raids on religious meetings and of family environment), and article 30 (right to demolition of places of worship. “The Committee recommends that the State practice religion in community with members Party respect the right of the child to freedom of the child’s group) support children’s right to of religion. The State Party should ensure that acquire their parents’ religion. all religious organizations are free to exercise More States Parties have made reservations their right to freedom of religion or belief or declarations concerning article 14 of the subject only to the limitations provided for in article 14 of the Convention. The Committee Convention than any other article. Some are further recommends that the State Party wide-ranging reservations or declarations uphold- prevent, prohibit and punish any violent ing parental rights and authority in relation to the attack against religious activities, including civil rights of children, in particular articles 13, demolition of places of worship.” (Turkmenistan 14 a nd 15. CRC/C/TKM/CO/1, paras. 34 and 35) For example, Algeria made an interpretative dec- laration: “The provisions of paragraphs 1 and 2 The child’s right and parental of article 14 shall be interpreted by the Algerian direction: article 14(2) Government in compliance with the basic founda- The Convention on the Rights of the Child differs tions of the Algerian legal system, in particular: from previous instruments in its treatment of the With the Constitution, which stipulates in its • his child’s right to freedom of religion vis-à-vis article 2 that Islam is the state religion and or her parents. For example, in the International in its article 35 that there shall be no infringe- Covenant on Civil and Political Rights, paragraph ment of the inviolability of the freedom 4 of article 18 refers to the parent-child relation- of conviction and the inviolability of the ship and requires respect for “the liberty of parents freedom of opinion; and, when applicable, legal guardians to ensure With Law No. 84-11 of 9 June 1984, compris- the religious and moral education of their chil- • dren in conformity with their own convictions” ing the Family Code, which stipulates that Implementation Handbook for the Convention on the Rights of the Child 188

217 a child’s education is to take place in accor- such protection and care as is necessary for his or her well-being, taking into account the rights dance with the religion of its father.” and duties of his or her parents, legal guardians, (CRC/C/2/Rev.8, p. 11) or other individuals legally responsible for him In contrast, a declaration from the Netherlands or her, and, to this end, shall take all appropriate states its understanding that article 14 “is in legislative and administrative measures.” Under accordance with the provisions of article 18 of article 12, the child’s views should be appropri- the International Covenant on Civil and Political ately respected in any proceedings. Respect for Rights... and that this article shall include the children’s refusal of treatment on grounds of their freedom of a child to have or adopt a religion or own religious convictions is dependent on their belief of his or her choice as soon as the child is evolving capacities and on consideration of the capable of making such choice in view of his or Convention’s general principles. her age or maturity”. (CRC/C/2/Rev.8, p. 32) When parents disagree over i c t l r e a Other States, where Islam is the state religion, the child’s religion made reservations focusing specifically on The Convention on the Rights of the Child the child’s right to freedom of religion. For requires States to recognize the principle that example: “[Iraq] ha[s] seen fit to accept it [the “both parents have common responsibilities for Convention]... subject to a reservation in respect the upbringing and development of the child” (art- of article 14, paragraph 1, concerning the child’s icle 18). This must apply to the qualified parental freedom of religion, as allowing a child to change direction that article 14 authorizes in the exer- his or her religion runs counter to the provisions cise by the child of his or her right to freedom of of the Islamic Shariah.”; “The Government of the religion. Neither parent should have “authority” Republic of Maldives expresses its reservation to over such matters. Where there is disagreement paragraph 1 of article 14..., since the Constitution and the matter goes to court, the matter should and the laws of the Republic of Maldives stipu- be decided on the basis of the child’s right under late that all Maldives should be Muslims”; “The article 14, with the child’s views taken seriously Kingdom of Morocco, whose Constitution guar- according to his or her age and maturity. antees to all the freedom to pursue his religious The child’s right to freedom affairs, makes a reservation to the provisions of of religion in alternative care article 14, which accords children freedom of When children are separated from their families religion, in view of the fact that Islam is the state and are in alternative care provided by the State religion”; “The Sultanate [of Oman] does not con- or otherwise, article 14 of the Convention requires sider itself to be bound by those provisions of that their right to freedom of religion must be article 14 of the Convention that accord a child maintained. In many countries, religious orga- the right to choose his or her religion or those of nizations are prominent in providing alternative its article 30 that allow a child belonging to a reli- care for children. Article 20(3) states that when gious minority to profess his or her own religion.” considering alternative care for a child, “due (CRC/C/2/Rev.8, pp. 26, 29, 30, 35) regard shall be paid to the desirability of continu- Article 51 of the Convention on the Rights of the ity in a child’s upbringing and to the child’s eth- Child states: “A reservation incompatible with nic, religious, cultural and linguistic background” the object and purpose of the present Convention (see article 20, page 288). But inf lexible laws shall not be permitted.” Ten States Parties have requiring that the child should automatically be recorded objections to certain of these reserva- brought up in the religion of his or her parent(s) tions to article 14 (see CRC/C/2/Rev.8, pp. 48 et do not respect the child’s right to freedom of reli- .). The Committee has expressed concern at seq gion guaranteed by article 14. reservations that suggest lack of full recognition Religious communities of the child as a subject of rights and, consistent Under article 14, the ability of children to decide with its general policy, the Committee has urged to join or leave a religious community should be States to review and withdraw all reservations subject to parental direction, exercised in accor- (see article 4, page 49). dance with their evolving capacities, and to the In some States, courts have powers to overrule particular restrictions in paragraph 3. Some States parents who have refused certain types of medi- have legislated on these issues. cal treatment for their children on the grounds of Schooling and freedom of religion religious conviction. Under the Convention on the Ensuring freedom of religion in the context of Rights of the Child, it is clear that the State should compulsory education has become an increasing have such powers to seek intervention. Under concern for the Committee. article 3(2), “States undertake to ensure the child CHILD’S RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION 189

218 compulsory subject does not infringe upon In its first General Comment, issued in 2001, on the rights of children belonging to religious “The aims of education”, the Committee empha- (Armenia CRC/C/15/Add.225, minorities.” sizes that “children do not lose their human rights paras. 31 and 32) by virtue of passing through the school gates” and highlights the importance of schools respect- “While recognizing the State Party’s ing children’s participation rights (Committee on acceptance of freedom of religion, the the Rights of the Child, General Comment No. 1, Committee is concerned at the fact that classes on Catholicism are part of the curriculum, 2001, CRC/GC/2001/1, para. 8). which is discriminatory for non-Catholic As noted above (page 188), the International children. Covenant on Civil and Political Rights requires “The Committee recommends that the State States (in article 18(4)) to respect “the liberty of Party devise a curriculum that will ensure that parents and, when applicable, legal guardians the child’s freedom of religion can be fully to ensure the religious and moral education of realized in the educational system without any i c t l r e a discrimination.” (Costa Rica CRC/C/15/Add.266, their children in conformity with their own con- paras. 25 and 26) victions”. In its General Comment on this provi- sion, the Human Rights Committee states: “The Where religious education in schools is not com- Committee is of the view that article 18(4) per- pulsory, or there are arrangements for exemption, mits public school instruction in subjects such the Committee questions whether they are ade- as the general history of religions and ethics if it quate to achieve freedom of religion: is given in a neutral and objective way. The lib- “The Committee is concerned that, despite erty of parents or legal guardians to ensure their regulations guaranteeing that parents can children receive a religious and moral education choose for their children to attend ethics in conformity with their own convictions, set classes instead of religion classes in public forth in article 18(4), is related to the guarantees schools, in practice few schools offer ethics of the freedom to teach a religion or belief stated courses to allow for such a choice and students in article 18(1). The Committee notes that public require parental consent to attend ethics courses. education that includes instruction in a particular “The Committee recommends that the religion or belief is inconsistent with article 18(4) State Party ensure that all public schools unless provision is made for non-discriminatory permit children, in practice, to choose freely exemptions or alternatives that would accom- whether to attend religion or ethics classes modate the wishes of parents and guardians.” with parental direction provided in a manner (Human Rights Committee, General Comment consistent with the child’s evolving capacities.” No. 22, 1993, HRI/GEN/1/Rev.8, para. 6, p. 196) (Poland CRC/C/15/Add.194, paras. 32 and 33) But the Convention on the Rights of the Child “The Committee is concerned that, as requires that arrangements for moral and reli- mentioned in the State Party’s report (para. gious education be reviewed to ensure respect 147), children, especially in elementary schools, child’s right to freedom of religion, with for the may suffer from marginalization if they abstain parental direction provided in a manner consis- from religious instruction, which is mainly tent with the child’s “evolving capacities”. covering Catholic religion. In addition, the Committee is concerned that parents, notably Some States do not allow religious teaching in those of foreign origin, are not always aware state-supported education. In others, there may that religious instruction is not compulsory. be religious education and worship or observance “In the light of articles 2, 14 and 29 of the in one or more religions. Some States have set Convention, the Committee recommends an age at which any control of the child’s mani- that the State Party make sure that parents, festation of religion transfers from parents to the in particular of foreign origin, when they child, although the concept of “evolving capaci- are filling out the relevant forms, are aware that Catholic religious instruction is not ties” in article 5 and article 14 appears to demand (Italy CRC/C/15/Add.198, paras. 29 compulsory.” more flexibility. and 30) The Committee expresses concern if the compul- Commenting on Norway’s Second Report, the sory school curriculum does not provide for chil- Committee suggested that a new system for pro- dren’s freedom of religion. For example: viding exemptions from parts of the religious “The Committee notes that the study of the knowledge curriculum might be discriminatory: history of the Armenian Apostolic Church “The Committee is concerned that the in 2002 was made a compulsory subject in approach taken by the State Party’s Act No. schools. 61 of 17 July 1998 relating to primary, lower “In the light of article 14, the Committee recommends that the above-mentioned secondary and upper secondary education, Implementation Handbook for the Convention on the Rights of the Child 190

219 which introduces a new common curriculum on Norway that it was under an obligation to provide ‘Religions, Knowledge and Ethical Education’, the authors with “an effective and appropriate may be discriminatory. The Committee is remedy that will respect the right of the appli- concerned notably by the process of providing cants as parents to ensure and as pupils to receive for exemptions to those children and parents an education that is in conformity with their own who do not wish to participate in parts of the convictions. The State Party is under an obliga- teaching. tion to avoid similar violations in the future.” “The Committee recommends that the State (Human Rights Committee, Communication Party review the implementation of the No. 1155/2003: Norway. 23/11/2004, CCPR/C/82/ new curriculum and cons ider an alternative D/1155/2003) exemption process.” (Norway CRC/C/15/Add.126, paras. 26 and 27) Another form of discrimination associated with It followed this up when it examined Norway’s school religion may arise when States provide Third Report: i c funding for schooling in certain religions but not t l r e a others. “The Committee takes note of the Views of the Human Rights Committee under the Optional The Committee has expressed concern at limita- Protocol to the International Covenant on Civil tions on children’s (and in some cases teachers’) and Political Rights of 3 November 2004 (CCPR/ freedom to wear religious symbols and/or cloth- C/82/D/1155/2003) regarding the teaching ing, raising issues under article 14 and also under of the school subject Christian Knowledge and Religious and Ethical Education. In this article 13 (freedom of expression) and article 29 regard, the Committee welcomes the State (aims of education): Party’s information on the planned changes “The Committee is concerned about of the Education Act to bring the teaching of information brought to its attention which Christian Knowledge and Religious and Ethical indicates that the exercise of the right to Education into full compliance with the right freedom of religion may not always be fully to freedom of religion enshrined in article 14 guaranteed, particularly with regard to of the Convention. The Committee encourages regulations prohibiting the wearing of a the State Party to expedite the process of headscarf by girls in schools. adopting and enacting these changes.” “The Committee recommends that the State (Norway, CRC/C/15/Add.263, para. 20) Party take all necessary measures to ensure the full implementation of the right to freedom of The Committee was referring to the Views of the (Tunisia thought, conscience and religion.” Human Rights Committee on an individual com- CRC/C/15/Add.181, paras. 29 and 30) munication from a group of Norwegian parents and children. Norway has a state religion and a “The Committee notes the decision of the state Church, of which approximately 86 per cent Constitutional Court of 24 September 2003 of the population are members. In August 1997, (2 BvR 1436/02, Case Ludin) but is concerned at laws currently under discussion in some of the Norwegian government introduced a new the Länder aiming at banning schoolteachers mandatory religious subject in the Norwegian from wearing headscarves in public schools, school system, entitled “Christian Knowledge as this does not contribute to the child’s and Religious and Ethical Education” (CKREE), understanding of the right to freedom of replacing the previous “Christianity” subject and religion and to the development of an attitude the “life stance” subject. This new subject only of tolerance as promoted in the aims of provided for exemption from certain limited seg- education under article 29 of the Convention. ments of the teaching. The applicants claimed that “The Committee recommends that the State the State Party violated their rights to freedom of Party take educational and other measures religion – i.e., their right to decide on the type of aimed at children, parents and others to develop a culture of understanding and “life stance” upbringing and education their chil- tolerance, particularly in the area of freedom dren shall have - and their right to privacy. They of religion, conscience and thought by, also claimed that the partial exemption procedure inter alia , avoiding measures which single out violated the prohibition of discrimination. (Germany a particular religious group.” CRC/C/15/Add.226, paras. 30 and 31) The Human Rights Committee found a violation of article 18(4) of the International Covenant on “The Committee notes that the Constitution Civil and Political Rights: “The States Parties to provides for freedom of religion and that the the present Covenant undertake to have respect law of 1905 on the separation of church and for the liberty of parents and, when applica- State prohibits discrimination on the basis ble, legal guardians to ensure the religious and of faith. The Committee equally recognizes moral education of their children in conformity the importance the State Party accords to with their own convictions”. The Committee told secular public schools. However, in the light CHILD’S RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION 191

220 “The Committee recommends that the State of articles 14 and 29 of the Convention, the Party ensure that a child’s religious affiliation, Committee is concerned by the alleged rise or lack of one, in no way hinders respect for in discrimination, including that based on the child’s rights, including the right to non- religion. The Committee is also concerned discrimination and to privacy, for example in that the new legislation (Law No. 2004-228 the context of information included in the of 15 March 2004) on wearing religious (Greece school graduation certificate.” symbols and clothing in public schools may be CRC/C/15/Add.170, paras. 44 and 45) counterproductive, by neglecting the principle of the best interests of the child and the right of the child to access to education, and not Limitations on manifestation achieve the expected results. The Committee of religion: article 14(3) welcomes that the provisions of the legislation will be subject to an evaluation one year after The limitations allowed by paragraph 3 on the its entry into force. freedom “to manifest one’s religion or beliefs” i c t l r “The Committee recommends that the State e a are identical to those in article 18(3) of the Party, when evaluating the effects of the International Covenant on Civil and Political legislation, use the enjoyment of children’s Rights. In its General Comment referred to above, rights, as enshrined in the Convention, as a the Human Rights Committee “... notes that art- crucial criteria in the evaluation process and icle 18 distinguishes the freedom of thought, con- also consider alternative means, including science, religion or belief from the freedom to mediation, of ensuring secular character of public schools, while guaranteeing that manifest religion or belief: “It does not permit individual rights are not infringed upon and any limitations whatsoever on the freedom of that children are not excluded or marginalized thought and conscience or on the freedom to have from the school system and other settings or adopt a religion or belief of one’s choice. These as a result of such legislation. The dress code freedoms are protected unconditionally, as is the of schools may be better addressed within right of everyone to hold opinions without inter- the public schools themselves, encouraging ference in article 19.1...” participation of children. The Committee further recommends that the State Party In relation to the freedom to manifest religion or continue to closely monitor the situation of belief, the Human Rights Committee emphasizes girls being expelled from schools as a result of that restrictions are permitted “only if limitations the new legislation and ensure they enjoy the are prescribed by law and are necessary to pro- (France CRC/C/15/ right of access to education.” tect public safety, order, health or morals, or the Add.240, paras. 25 and 26) fundamental rights and freedoms of others... In The Committee on the Rights of the Child has interpreting the scope of permissible limitation found, in addition, that issues affecting the clauses, States Parties should proceed from the child’s privacy may arise in relation to religion need to protect the rights guaranteed under the in schools. In considering the arrangements in Covenant... Limitations imposed must be estab- Norway to allow opting out of religious educa- lished by law and must not be applied in a manner tion, the Committee raised the need to respect the that would vitiate the rights guaranteed in article privacy of the child in relation to his or her reli- 18. The Committee observes that paragraph 3 of gious faith: article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, “The Committee notes that although an opting-out system exists for children even if they would be allowed as restrictions to wishing to abstain from compulsory religious other rights protected in the Covenant, such as education, this requires their parents to submit national security. Limitations may be applied a formal request exposing the faith of the only for those purposes for which they were pre- children involved and as such may be felt to scribed and must be directly related and propor- be an infringement of their right to privacy.” tionate to the specific need on which they are (Norway CRC/C/15/Add.23, para. 9) predicated. Restrictions may not be imposed for It raised similar discrimination and privacy issues discriminatory purposes or applied in a discrim- with Greece: inatory manner...” (Human Rights Committee, General Comment No. 22, 1993, HRI/GEN/1/ “The Committee expresses its concern at Rev.8, paras. 3 and 8, p. 196) reports of administrative and social pressures being placed on children from religious Discrimination on grounds of religion minorities including, for example, the Article 2 requires States to respect and ensure requirement that a student’s secondary school the rights in the Convention on the Rights of the graduation certificate indicate, where this is Child to each child in their jurisdiction without the case, that the student does not practise the Greek Orthodox religion. discrimination of any kind, irrespective of “the Implementation Handbook for the Convention on the Rights of the Child 192

221 child’s or his or her parent’s or legal guardian’s communities by persons with disabilities (rule ... religion...” Thus, under article 2 and article 14, 12). It proposes that “States should encourage the the child must not suffer discrimination because distribution of information on disability matters of the child’s right to have a religion, or to have to religious institutions and organizations. States no religion, nor over the child’s right to manifest should also encourage religious authorities to his or her religion. include information on disability policies in the training for religious professions, as well as in In addition, there must be no discrimination religious education programmes.” affecting the child’s enjoyment of any other rights under the Convention on the grounds of Religion and children deprived of their the child’s, or his or her parent’s, religion. And liberty. The United Nations Rules for the article 2(2) requires States to take all appropriate Protection of Juveniles Deprived of their Liberty, measures to ensure that the child is protected which the Committee on the Rights of the Child i c t l against all forms of discrimination or punishment r e a has commended to States Parties, requires: on the basis of the status, activities, expressed “... The religious and cultural beliefs, practices opinions or beliefs of the child’s parents, legal and moral concepts of the juvenile should be guardians or family members. respected” (rule 4). And in detail it states: “Every The Human Rights Committee, in its General juvenile should be allowed to satisfy the needs of Comment on article 18 of the International his or her religious and spiritual life, in particular Covenant on Civil and Political Rights quoted by attending the services or meetings provided in above, also emphasizes: “The fact that a religion the detention facility or by conducting his or her is recognized as a state religion or that it is estab- own services and having possession of the nec- lished as official or traditional or that its followers essary books or items of religious observance comprise the majority of the population, shall not and instruction of his or her denomination. If a result in any impairment of the enjoyment of any detention facility contains a sufficient number of of the rights under the Covenant... nor in any dis- juveniles of a given religion, one or more quali- crimination against adherents to other religions fied representatives of that religion should be or non-believers.” (Human Rights Committee, appointed or approved and allowed to hold regu- General Comment No. 22, 1993, HRI/GEN/1/ lar services and to pay pastoral visits in private to Rev.8, para. 9, p. 196) juveniles at their request. Every juvenile should Article 24(3) of the Convention on the Rights of have the right to receive visits from a qualified the Child requires States to “take all effective and representative of any religion of his or her choice, appropriate measures with a view to abolishing as well as the right not to participate in religious traditional practices prejudicial to the health of services and freely to decline religious education, children”. And article 19 requires States to ensure counselling or indoctrination.” (Rule 48) protection from “all forms of physical or mental violence”. Practices that stem from or are linked In its General Comment, quoted above, the to manifestations and observance of religions Human Rights Committee also emphasized that must not involve breaches of these or any other “Persons already subject to certain legitimate articles of the Convention. constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief Children with disabilities and freedom of to the fullest extent compatible with the spe- The Standard Rules on the Equalization religion. cific nature of the constraint.” (Human Rights of Opportunities for Persons with Disabilities Committee, General Comment No. 22, 1993, includes a section on encouraging measures for HRI/GEN/1/Rev.8, para. 8, p. 196) equal participation in the religious life of their Reporting guidelines: see Guidelines for Periodic Reports (Revised 2005) (CRC/C/58/Rev.1), Appendix 3, page 699. CHILD’S RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION 193

222 i c t l r e a Implementation Checklist General measures of implementation • Have appropriate general measures of implementation been taken in relation to article 14, including: identification and coordination of the responsible departments and agencies at ■ ■ all levels of government (article 14 is particularly relevant to departments of social welfare and education and to agencies responsible for the State’s relations with recognized religions )? ■ ■ identification of relevant non-governmental organizations/civil society partners? ■ a comprehensive review to ensure that all legislation, policy and practice is ■ compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation which includes where necessary the identification of goals and indicators of ■ ■ progress? ■ which does not affect any provisions which are more conducive to the rights of ■ the child? ■ ■ which recognizes other relevant international standards? ■ ■ which involves where necessary international cooperation? (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole.) budgetary analysis and allocation of necessary resources? ■ ■ ■ ■ development of mechanisms for monitoring and evaluation? ■ ■ making the implications of article 14 widely known to adults and children? development of appropriate training and awareness-raising (in relation to article 14 ■ ■ religious groups and all those working with or for likely to include the training of )? children and their families, and parenting education Specific issues in implementing article 14 • ■ ■ Is the child’s right to freedom of thought, conscience and religion, as guaranteed in article 14, explicitly recognized in legislation? ■ Are there legislative and other arrangements to respect the child’s conscientious ■ objection to military service? ■ Are the only restrictions on the child’s right to manifest religion or beliefs consistent ■ with those set out in paragraph 3 of article 14, and are they defined in legislation? Do law, policy and practice promote the child’s right to freedom of thought, conscience and religion, as set out in article 14, in relation to ■ ■ the child/parent relationship? ■ all forms of alternative care? ■ ■ school? ■ ■ Do law, policy and practice respect the rights and duties of parents to provide ■ appropriate direction in the exercise by the child of his/her right as set out in article 14? Implementation Handbook for the Convention on the Rights of the Child 194

223 i c t l r e a see page XIX How to use the checklist, ■ ■ If the State has one or more religions recognized in law, does legislation respect the right of the child to have and/or practice another religion or no religion? ■ Do any restrictions on the right of the child to enter or leave religious communities ■ respect the child’s evolving capacities? ligious education and/or worship in schools Does legislation permit withdrawal from re at the request of the child? ■ ■ ■ ■ the child’s parents? In such cases, is education and/or arrangements for worship in the religion of the ■ ■ child made available? ■ Where the State supports the provision of education in different religions, is this ■ done without discrimination? ■ ■ Is there provision for the consideration and resolution of complaints from children regarding breaches of their rights under article 14? ■ ■ Have special measures been adopted to ensure the freedom of religion of children with disabilities? In relation to children whose liberty is restricted, is rule 48 of the United Nations ■ ■ Rules for the Protection of Children Deprived of their Liberty fulfilled? Reminder : The Convention is indivisible and its articles interdependent. Article 14 should not be considered in isolation. Particular regard should be paid to: The general principles Article 2: all rights to be recognized for each child in the jurisdiction without discrimination on any ground Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 6: right to life and maximum possible survival and development Article 12: respect for the child’s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child Closely related articles Articles whose implementation is particularly related to that of article 14 include: Article 5: parental responsibiliti es and child’s evolving capacities Article 8: preservation of identity Articles 13 and 15: freedom of expression and freedom of association Article 17: access to appropriate information Article 20: alternative care – continuity of religion and culture Articles 28 and 29: right to education and aims of education Article 30: rights of children of minorities and indigenous communities Article 37: restriction of liberty and religious freedom Article 38: armed conflict and conscientious objection CHILD’S RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION 195

224 UNICEF/DOI95-0488

225 c l i t e r Child’s right a to freedom of association and peaceful assembly ... Text of Article 15 1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly. 2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of ), the protection of public health ordre public national security or public safety, public order ( or morals or the protection of the rights and freedoms of others. ogether with articles 12 and 13, the civil rights, the Committee on the Rights of the rights to freedom of association and Child has encouraged their incorporation into freedom of peaceful assembly promote States’ own legislation with specific reference to the child as an active, participating T children’s rights. The Committee has emphasized Summary member of society. Article 12 sets out the right of that the only restrictions that may be applied are individual children to express their views freely; those set out in paragraph 2 of article 15. ■ article 15 adds rights of collective participation. Previous human rights instruments have pro- moted these rights for “everyone”. As with other CHILD’S RIGHT TO FREEDOM OF ASSOCIATION AND PEACEFUL ASSEMBLY 197

226 In its first General Comment, issued in 2001, on The child’s right to freedom “The aims of education”, the Committee empha- of association sizes that Article 20 of the Universal Declaration of Human “Children do not lose their human rights by virtue of passing through the school gates...” Rights states: “1. Everyone has the right to free- (CRC/GC/2001/1, para. 8) dom of peaceful assembly and association. 2. No one may be compelled to belong to an asso- and highlights the importance of schools respect- ciation.” The International Covenant on Civil and ing children’s participation rights. The Committee Political Rights reasserts these rights in its art- commented on Honduras’ Second Report: icles 21 and 22, noting also the specific right to “Although the Committee notes with form and join trade unions, and applying the same appreciation the enactment of the Education limited restrictions as are set out in paragraph 2 Reform Law, which encourages and increases of article 15 of the Convention on the Rights of the participation of children in schools, it is still i c t l r e a the Child. While in many States constitutional concerned that participatory rights of children principles, echoing the international instruments, have not been sufficiently developed in the State Party. In addition, concern is also expressed confer a right of association on “everyone”, the at the existing legal prohibition of students’ implications of recognizing this right for children organizations in secondary schools, which is are still not widely explored. The Committee on contrary to the child’s rights to freedom of the Rights of the Child has recommended that association and peaceful assembly. In light of the rights for children guaranteed by article 15 articles 15 and 16 and other related articles of the should be reflected in legislation. The right to Convention, the Committee recommends that freedom of association includes association with further measures, including legislative reform, an individual as well as with a group, so long as be undertaken to promote the participation the individual does not threaten the child’s other of children in the family, school and social life, rights, including to protection. as well as the effective enjoyment of their fundamental freedoms, including the freedoms Freedom of association implies the right to form of opinion, expression, and association.” associations as well as to join and to leave associ- (Honduras CRC/C/15/Add.105, para. 22) ations. In recommendations adopted following its It should be noted that, in general, the law concern- 2006 Day of General Discussion on “The right of ing contracts and administration of organizations the child to be heard”, the Committee recognizes may pose obstacles for children below the age of the important role played by non-governmental majority or the age of legal capacity acting as direc- organizations in facilitating the active participa- tors or trustees of public associations. It seems that tion and organization of children and youth at the few countries have as yet explored this from the national and international level: perspective of the full implementation of article 15. “Furthermore, the Committee welcomes the increasing number of youth-led organizations The Committee has expressed concern at limits in various parts of the world. In this context, on children joining or establishing political orga- the Committee reminds States Parties of the nizations. For example: right to exercise freedom of association as “The Committee is concerned about stipulated in article 15 of the Convention.” restrictions on political activities undertaken (Committee on the Rights of the Child, Report on by schoolchildren both on and off school the forty-third session, September 2006, Day of campuses... General Discussion, Recommendations, para. 33) “The Committee recommends that the State The Guidelines for Periodic Reports (Revised Party review legislation and regulations governing activities undertaken by asks States to provide data on the number of 2005) (Japan schoolchildren on and off campus...” child and youth organizations or associations and CRC/C/15/Add.231, paras. 29 and 30) the number of members they represent, and also on the number of schools with independent student “The Committee is concerned at the councils (CRC/C/58/Rev.1, Annex, paras. 6 and 7). contradiction between the information provided by the Ministry of Education in the The Committee has specifically commended the State Party’s report whereby students have establishment of student organizations in schools the right to freedom of association, including and children’s organizations in local munici- the right to participate in students’ political palities. Various States’ reports have described parties, and article 18 of the Childhood and legislation providing for schools councils and Adolescence Code which establishes that the structures enabling children to have a say in persons below the age of 18 have the right to decision-making within their local community freedom of association, except for political or (see also article 12, page 151). lucrative activities. Implementation Handbook for the Convention on the Rights of the Child 198

227 “The Committee recommends that the State Thus, for example, the Committee expressed Party take appropriate measures to ensure concern to Belize about the response to a student the coherence of its legislation with regard to demonstration: the right of persons below the age of 18 to be “The Committee is concerned about the involved in political activities.” (Costa Rica limitations on the exercise of the right CRC/C/15/Add.266, paras. 23 and 24) to freedom of expression by children. The Committee commented to Georgia: The Committee notes with concern the violent incidents during a peaceful student “The Committee notes with concern that the demonstration against a rise in bus fares, law prohibits youth from becoming members which took place in the village of Benque Viejo of political parties and that this prohibition del Carmen on 24 April 2002, and the reported limits the opportunity for youth to learn about disproportionate use of force by the police the political process, delays their preparation for political leadership, and denies their full authorities. right to freedom of association. “The Committee recommends that the State i c t l r e a “In the light of article 15 of the Convention, Party encourage and facilitate the exercise the Committee recommends that the State by children of their right to freedom of Party amend its legislation to ensure that expression, including their right to freedom youth are allowed to join political parties and of association and of peaceful assembly, so that they fully enjoy their right to freedom of that they can freely discuss, participate and association.” (Georgia CRC/C/15/ Add.124, express their views and opinions on all matters paras. 30 and 31) affecting them.” (Belize CRC/C/15/Add.252, paras. 38 and 39) Following examination of Georgia’s Second Report, the Committee acknowledged progress: Restrictions on the child’s “The Committee welcomes the information rights: article 15(2) provided in the State Party’s report on the Children’s Parliament, the Children’s Forum and The Committee on the Rights of the Child has the Georgian Children’s Federation, as well as on the provisions of the Children’s and Youth stressed that the rights in article 15 may only be Associations Act, and notes the resolution restricted in accordance with paragraph 2 of art- of the Children’s Parliament recommending icle 15; restrictions must be defined in legislation representation of children with disabilities and and be necessary for one of the specific reasons children in institutions among its membership. set out in the article: “The Committee recommends that the State “The Committee is concerned that although Party continue and strengthen its efforts to promote and support these and other the freedoms of expression and assembly activities of children and in particular facilitate are formally recognized in the Constitution, and support participation of children with the exercise of these rights by children are disabilities and children in institutions.” restricted by vaguely worded limitation clauses (Georgia CRC/C/15/Add.222, paras. 30 and 31) (i.e. ‘in accordance with Islamic criteria’), which potentially exceed the permitted restrictions Unlike the International Covenant on Civil and set out in paragraph 2 of articles 13 and 15 of Political Rights, the Convention on the Rights the Convention. The Committee is concerned of the Child does not uphold the specific right of at reports of incidents of threats and violence children to “form and join trade unions for the by vigilante groups, such as Ansari-Hezbollah, protection of his interests” (article 22(1) of the directed at persons seeking to exercise or to Covenant). But the right is implied in the right promote the exercise of these rights. to freedom of association, and the limitations in ”The Committee recommends that the State article 15(2) would not justify preventing children Party establish clear criteria to assess whether a given action or expression is in accordance from forming or joining unions. Article 32 sets with interpretations of Islamic texts, and out States’ duties to prevent economic and other consider appropriate and proportionate means exploitation in labour (see page 479). to protect public morals while safeguarding the right of every child to freedom of The child’s right to freedom of expression and assembly.” (Islamic Republic of peaceful assembly Iran CRC/C/15/Add.123, paras. 33 and 34) The importance of article 15 is its emphasis on When it examined Iran’s Second Report, the children as holders of fundamental civil rights, Committee maintained its concern: including the right to engage in peaceful activi- “The Committee remains concerned that, ties as a group. The only restrictions on this right although freedom of expression and of must be defined in legislation and come within assembly is formally recognized in the the restrictions allowed under paragraph 2 of the Constitution, the protection of this freedom is restricted by the requirement to interpret it article (see below). CHILD’S RIGHT TO FREEDOM OF ASSOCIATION AND PEACEFUL ASSEMBLY 199

228 in accordance with Islamic principles without implementation of articles 13, 14 and 15 of the (Japan CRC/C/15/Add.231, paras. 29 Convention.” clarifying at the outset the basis on which an and 30) action or expression is considered to be in keeping with such principles. A particular Children with disabilities. “The Committee reiterates its recommendation, emphasis of the World Programme of Action expressed in its previous Concluding Concerning Disabled Persons has been the pro- Observations, that the State Party establish motion of the establishment and development of clear criteria for determining whether a given associations of people with disabilities. The inclu- action or expression is in accordance with Islamic law and the Convention in order to sion in the Convention on the Rights of the Child avoid arbitrary interpretations.” (Islamic Republic of a specific article on children with disabilities of Iran CRC/C/15/Add.254, paras. 39 and 40) (article 23), as well as the explicit inclusion of “disability” as one of the grounds of discrimi- In some countries, there are laws limiting chil- nation barred by article 2, emphasizes the equal dren’s rights to association and peaceful assembly i c t l r e a right of children with disabilities to all civil during certain hours – curfews, often imposed to rights, including the right to freedom of associ- prevent unaccompanied children from being out ation and peaceful assembly. The Convention on of their homes after a certain time in the evening the Rights of Persons with Disabilities, adopted and often related to the age of the child. Such in December 2006, requires States to ensure that blanket restrictions on the child’s right do not persons with disabilities can effectively and fully appear to fall within the very limited restrictions participate in political and public life on an equal allowed in paragraph 2 of article 15. basis with others, and to promote actively an envi- The Committee commented to Panama: ronment in which persons with disabilities can “The Committee regrets the lack of specific effectively and fully participate, including par- information about the implementation of ticipation in non-governmental organizations and the civil rights of children (arts. 13-17). The associations, and forming and joining organiza- Committee is also concerned at reports tions of persons with disabilities at international, that marginalized poor adolescents have national, regional and local levels (article 29). been arrested, ill-treated and/or detained, apparently without legal basis, when Children deprived of their liberty. The gathering together. rights under article 15 for children deprived of “The Committee urges the State Party to their liberty are emphasized in the United Nations provide in its next report specific information Rules for the Protection of Juveniles Deprived of about the implementation of these rights and their Liberty, which the Committee has promoted to protect adolescents against illegal arrest, as providing appropriate standards for implemen- (Panama detention and ill-treatment.” tation of the Convention. In general, the Rules CRC/C/15/Add.233, paras. 31 and 32) requires that “Juveniles deprived of their liberty Unlike article 14, article 15 makes no reference to shall not for any reason related to their status be respecting the rights of parents to provide direc- denied the civil, economic, political, social or tion to the child in the exercise of the child’s right cultural rights to which they are entitled under in a manner consistent with the evolving capaci- national or international law, and which are com- ties of the child, but this principle is upheld gen- patible with the restriction of liberty.” (Rule 13) erally in article 5 (see page 75). Some States More specifically, the Rules requires that “Every indicated in their Initial Reports that there is an means should be provided to ensure that juve- age below which children are not permitted to niles have adequate communication with the out- join associations or to do so without the agree- side world, which is an integral part of the right to ment of their parents. The Convention provides fair and humane treatment and is essential to the no support for arbitrary limitations on the child’s preparation of juveniles for their return to society. right to freedom of association. The Committee Juveniles should be allowed to communicate with told Japan it was concerned their families, friends and other persons or rep- “... that children below the age of 18 require resentatives of reputable outside organizations, parental consent to join an association”, to leave detention facilities for a visit to their home and family and to receive special permis- and recommended sion to leave the detention facility for educational, “... that the State Party review legislation vocational or other important reasons...” (Rule 59) and regulations... in order to ensure the full Reporting guidelines: see Guidelines for Periodic Reports (Revised 2005) (CRC/C/58/Rev.1), Appendix 3, page 699. Implementation Handbook for the Convention on the Rights of the Child 200

229 i c t l r e a Implementation Checklist • General measures of implementation Have appropriate general measures of implementation been taken in relation to article 15, including: identification and coordination of the responsible departments and agencies at all ■ ■ departments of justice, social welfare, levels of government (article 15 is relevant to )? education ■ ■ identification of relevant non-governmental organizations/civil society partners? a comprehensive review to ensure that all legislation, policy and practice is ■ ■ compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation ■ which includes where necessary the identification of goals and indicators of ■ progress? which does not affect any provisions which are more conducive to the rights of ■ ■ the child? which recognizes other relevant international standards? ■ ■ ■ ■ which involves where necessary international cooperation? (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole.) budgetary analysis and allocation of necessary resources? ■ ■ development of mechanisms for monitoring and evaluation? ■ ■ making the implications of article 15 widely known to adults and children? ■ ■ ■ ■ development of appropriate training and awareness-raising (in relation to article 15 all those working with or for children and their likely to include the training of families, and parenting education )? Specific issues in implementing article 15 • ■ ■ Are the rights of the child to freedom of association and peaceful assembly, as guaranteed in article 15, explicitly recognized in legislation? Have measures been taken to promote opportunities for children to exercise their ■ ■ rights to freedom of association and peaceful assembly? Are the only permitted restrictions on these rights consistent with those set out in ■ ■ paragraph 2 of article 15? Are the only permitted restrictions on these rights defined in legislation? ■ ■ In relation to children in employment, does the State ensure there are no limits on ■ ■ the right of children to form and to join and to leave trades unions? Have special measures been taken to promote the freedom of association and ■ ■ peaceful assembly of children with disabilities? CHILD’S RIGHT TO FREEDOM OF ASSOCIATION AND PEACEFUL ASSEMBLY 201

230 i c t l r e a How to use the checklist, see page XIX ■ In relation to children whose liberty is restricted, are rules 13 and 59 of the United ■ Nations Rules for the Protection of Juveniles Deprived of their Liberty fulfilled? ■ ■ Is there provision for the consideration and resolution of complaints from children regarding breaches of their rights under article 15? The Convention is indivisible and its articles interdependent. Reminder : Article 15 should not be considered in isolation. Particular regard should be paid to: The general principles Article 2: all rights to be recognized for each child in the jurisdiction without discrimination on any ground Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 6: right to life and maximum possible survival and development Article 12: respect for the child’s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child Closely related articles Articles whose implementation is particularly related to that of article 15 include: Article 13: freedom of expression Article 14: freedom of thought, conscience and religion Article 29: aims of education Article 31: child’s rights to play, recreation and to participation in cultural life and the arts Article 32: right of child to join a trade union Article 37: restriction of liberty and freedom of association Implementation Handbook for the Convention on the Rights of the Child 202

231 c l i t e r a Child’s right to privacy ... Text of Article 16 1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 2. The child has the right to the protection of the law against such interference or attacks. rticle 16 provides for the right of alternative care, and all institutions, facilities every child to be protected by the and services. In addition, the article protects the law against arbitrary or unlawful child’s family and home from arbitrary or unlaw- interference with his or her pri- A ful interference. The article raises issues con- vacy, family, home or correspondence as well as cerning the physical environment in which the against unlawful attacks on his honour and child lives, the privacy of his or her relationships reputation. and communications with others, including rights to confidential advice and counselling, control Like the previous three articles, article 16 applies of access to information stored about the child specifically to the child a fundamental civil in records or files, and so on. Inevitably, chil- right already established for everyone in the Summary dren’s rights to privacy within the family vary Universal Declaration of Human Rights and the according to family structures, living conditions International Covenant on Civil and Political and economic and other factors determining the Rights. Article 12 of the Universal Declaration private space available to the child. of Human Rights uses similar wording (but without the qualifying “unlawful” before the In addition to article 16, article 40(2)(b)(vii) words “interference” and “attacks”). The word- requires that a child alleged as or accused of hav- ing in article 17 of the International Covenant ing infringed the penal law should “... have his on Civil and Political Rights, ensuring that “no or her privacy fully respected at all stages of the one” is subject to such interference, is otherwise proceedings”; the Committee on the Rights of identical to the Convention on the Rights of the the Child has suggested this respect should also Child. apply to children in family proceedings and when children are victims of violence. And the Article 16 must apply to all children without dis- Committee has emphasized the importance of crimination. The child’s privacy is to be protected in all situations, including within the family, ■ the media respecting children’s privacy. CHILD’S RIGHT TO PRIVACY 203

232 wishing to abstain from compulsory religious “No child shall be subjected education, this requires their parents to submit to arbitrary or unlawful a formal request exposing the faith of the interference with his or children involved and as such may be felt to be her privacy ...” an infringement of their right to privacy... “The Committee suggests that the State Party Some concern arose in the Working Group dur- reconsider its policy on religious education for ing the drafting of article 16 in regard to the role children in the light of the general principle of of parents, but it was ultimately resolved by the non-discrimination and the right to privacy.” (Norway CRC/C/15/Add.23, paras. 9 and 23) inclusion in the Convention of article 5, which requires respect for parents and legal guardians “The Committee ... further takes note with to provide direction and guidance to the child in concern of the requirement to record ethnic the exercise by the child of his or her rights, in origin in passports. a manner consistent with the evolving capacities i c “In the field of the right to citizenship, the t l r e a of the child (for example, see E/CN.4/1987/25, Committee is of the view that the State pp. 26 and 27; Detrick, p. 258). Party should, in the light of articles 2 (non- discrimination) and 3 (best interests of the Various States have issued declarations or reser- child), abolish the categorization of citizens, vations concerning the relationship between par- as well as mention on the national identity ents and their children’s civil rights, mentioning card of the religion and of the ethnic origin of article 16. When examining Initial Reports, the citizens, including children. In the view of the Committee has consistently asked for a review Committee, all possibility of stigmatization and and withdrawal of declarations and reservations; denial of rights recognized by the Convention in particular, it has expressed concern at reser- should be avoided.” (Myanmar CRC/C/15/ vations that suggest lack of full recognition of Add.69, para. 34) the child as a subject of rights. The Committee “The Committee expresses its concern at has expressed concern at the lack of the article’s reports of administrative and social pressures reflection in national legislation, along with other being placed on children from religious civil rights of the child. minorities including, for example, the requirement that a student’s secondary school The Committee has welcomed appropriate legis- graduation certificate indicate, where this is lation but noted that additional measures, includ- the case, that the student does not practise the ing for example secondary legislation controlling Greek Orthodox religion. particular settings, are needed to guarantee the “The Committee recommends that the State right to privacy in practice: Party ensure that a child’s religious affiliation, “In the light of its recommendation (see or lack of one, in no way hinders respect for Nicaragua CRC/C/15/Add.36, para. 34), the child’s rights, including the right to non- the Committee welcomes the fact that discrimination and to privacy, for example in domestic legislation (Code on Children and the context of information included in the Adolescents)... guarantees ... protection of the (Greece CR/C/15/ school graduation certificate.” child’s right to privacy (art. 16). However, the Add.170, paras. 44 and 45) Committee remains concerned about the lack of secondary legislation regulating the practical “... It further reiterates the recommendation implementation of these rights. The Committee of the Committee on the Elimination of Racial encourages the State Party to continue with Discrimination to reconsider the requirement its process of legal reform and allocation of to record ethnic origin in passports (A/54/18, appropriate resources in order to establish (Latvia CRC/C/15/ Add.142, paras. 23 para. 407).” practical procedures and regulations ... to and 24) guarantee [children’s] ... right to privacy...” When it examined Latvia’s Second Report, the (Nicaragua CRC/C/15/Add.108, para. 28) Committee The Committee on the Rights of the Child has “... welcomed the decision to remove the identified certain specific situations in reports mandatory requirement to record ethnic origin that raise issues under article 16. One example is (Latvia CRC/C/LVA/CO/2, para. 28) in passports.” the provision in one State Party which requires Confidential advice for children the recording of the child’s or his or her parent’s In its General Comment No. 4 on “Adolescent religion in relation to religious education in school health and development in the context of the and in other States Parties on children’s gradua- tion certificates, identity cards or passports (on Convention on the Rights of the Child”, the which ethnic origin is also recorded): Committee addresses the issues of confiden- tiality and privacy in relation to adolescent “The Committee notes that although an opting-out system exists for children health: Implementation Handbook for the Convention on the Rights of the Child 204

233 “In order to promote the health and the child’s rights, in particular in relation to his development of adolescents, States Parties are or her parents. also encouraged to respect strictly their right On occasions, the Committee has focused on to privacy and confidentiality, including with confidentiality in health services from the child’s respect to advice and counselling on health perspective. For example: matters (art. 16). Health care providers have an obligation to keep confidential medical “The Committee remains concerned that the information concerning adolescents, bearing right of access to medical advice and treatment in mind the basic principles of the Convention. without parental consent, such as testing for Such information may only be disclosed with HIV/AIDS, may be compromised in instances where the bill for such services is sent to the the consent of the adolescent, or in the same parents, violating the confidentiality of the situations applying to the violation of an doctor-child relationship. The Committee adult’s confidentiality. Adolescents deemed recommends that the State Party take mature enough to receive counselling without i c t l adequate measures to ensure that medical r the presence of a parent or other person e a advice and treatment remain confidential for are entitled to privacy and may request children of appropriate age and maturity, confidential services, including treatment.” in accordance with articles 12 and 16 of the (Committee on the Rights of the Child, General Convention.” (Netherlands CRC/C/15/Add.114, Comment No. 4, 2003, CRC/GC/2003/4, para. 11) para. 19) The General Comment also asserts adolescents’ The Committee raised privacy concerns over the right to give informed consent to medical treat- practice of virginity testing in South Africa: ment: “... The Committee is also concerned about “With regard to privacy and confidentiality, the traditional practice of virginity testing and the related issue of informed consent which threatens the health, affects the self- to treatment, States Parties should (a) enact esteem, and violates the privacy of girls... The laws or regulations to ensure that confidential Committee also recommends that the State advice concerning treatment is provided Party undertake a study on virginity testing to adolescents so that they can give their to assess its physical and psychological impact informed consent. Such laws or regulations on girls. In this connection, the Committee should stipulate an age for this process, or further recommends that the State Party refer to the evolving capacity of the child; introduce sensitization and awareness-raising and (b) provide training for health personnel programmes for practitioners and the general on the rights of adolescents to privacy and public to change traditional attitudes and confidentiality, to be informed about planned discourage the practice of virginity testing treatment and to give their informed consent in the light of articles 16 and 24(3) of the (CRC/GC/2003/4, para. 33) to treatment.” Convention.” (South Africa CRC/C/15/Add.122, para. 33) The original Guidelines for Periodic Reports, under article 1 (definition of the child), seeks Protection from interference In 1988, the Human Rights Committee issued a information on any minimum age defined in detailed General Comment on article 17 of the legislation for the child to have the right to International Covenant on Civil and Political receive “legal and medical counselling with- Rights, which concerns the right to privacy. It out parental consent”, and “medical treatment provides relevant definitions and explanation, in or surgery without parental consent”. These particular that: involve privacy issues: the right of the child to seek confidential advice on legal and medical the individual must be protected from inter- • matters, and the further right to confidential ference not only by state authorities but also treatment, including, for example, contracep- by others; tion, and abortion where permitted (see article the State must provide legislative and other 1, page 7). The Convention does not support • measures to prohibit such interference; the setting of any arbitrary age below which the child does not have such rights. But article interference can only take place in ways • 5 enables parents to provide direction and guid- defined in law, which must not be arbitrary, ance in a manner consistent with the evolving must comply with the provisions, aims and capacities of the child. objectives of the Covenant, and be reasonable in the particular circumstances; Medical and other professionals often have ethical codes requiring them to respect patient/ the State should enable individuals to complain • when they believe their right has been vio- client confidentiality. When a child is the patient lated and the State should provide appropriate or client, the principles and provisions of the remedies. Convention provide a framework for clarifying CHILD’S RIGHT TO PRIVACY 205

234 The Human Rights Committee emphasizes that Privacy in institutions States Parties are under a duty themselves not to The privacy of children in institutions, in par- engage in interference incompatible with article ticular in residential institutions and custodial 17 and to provide the legislative framework pro- institutions, can be particularly threatened by the hibiting such acts by natural or legal persons. physical environment and design, by overcrowd- Also, States Parties pay too little attention to the ing, lack of appropriate supervision and so on. fact that article 17 deals with protection against (Indeed, Costa Rica’s Initial Report identified the both unlawful and arbitrary interference: “That closure of large institutions and orphanages as means that it is precisely in state legislation above “an essential step” for the protection of children’s all that provision must be made for the protec- privacy (Costa Rica CRC/C/65/Add.7, paras. 122 tion of the right set forth in that article... The to 124)). Also, the use of video surveillance in term ‘unlawful’ means that no interference can institutions can breach children’s privacy rights. take place except in cases envisaged by the law. i c t l r Article 16 requires that the child’s right to pri- e a Interference authorized by States can only take vacy is protected by law. Hence, in institutions place on the basis of law, which itself must com- there should be minimum requirements on space, ply with the provisions, aims and objectives of including private space, design of toilets and the Covenant. bathrooms, and so on. These issues are covered “The expression ‘arbitrary interference’ is also in the United Nations Rules for the Protection of relevant to the protection of the right provided for Juveniles Deprived of their Liberty (see below) in article 17. In the Committee’s view, the expres- and are equally relevant to all institutional place- sion ‘arbitrary interference’ can also extend to ments. Article 3(3) of the Convention on the interference provided for under the law. The intro- Rights of the Child requires that institutions, ser- duction of the concept of arbitrariness is intended vices and facilities responsible for the care or pro- to guarantee that even interference provided for tection of children shall conform to the standards by law should be in accordance with the provi- established by competent authorities (see page 41). sions, aims and objectives of the Covenant and Standards must reflect the provisions of the should be, in any event, reasonable in the partic- Convention, including the child’s right to privacy, ular circumstances.” without discrimination: “While noting that the right to privacy of The Human Rights Committee suggests reports correspondence and telephone conversations should include information on the authorities and is protected in article 27 of the Constitution, organs set up within the legal system of the State the Committee is concerned at the lack that are “competent to authorize interference of information on rules, regulations and allowed by the law”: “It is also indispensable to practice regarding the protection of this right, have information on the authorities which are particularly for children in institutions. entitled to exercise control over such interference “The Committee recommends that the State with strict regard for the law, and to know in what Party submit specific information on these rules, regulations and practice, and on the manner and through which organs persons con- procedure for submission and handling of cerned may complain of a violation of the right complaints in case of violations of the rights to provided for in article 17 of the Covenant. States privacy.” (Uzbekistan CRC/C/UZB/CO/2, paras. 34 should in their reports make clear the extent to and 35) which actual practice conforms to the law. State The Convention on the Rights of Persons with Party reports should also contain information Disabilities, adopted in December 2006, under- on complaints lodged in respect of arbitrary or lines privacy rights, stating that: “No person with unlawful interference, and the number of any disabilities, regardless of place of residence or findings in that regard, as well as the remedies living arrangements, shall be subjected to arbi- provided in such cases.” trary or unlawful interference with his or her pri- The Human Rights Committee notes that “As all vacy, family, home or correspondence or other persons live in society, the protection of privacy types of communication or to unlawful attacks is necessarily relative. However, the competent on his or her honour and reputation. Persons with public authorities should only be able to call for disabilities have the right to the protection of the such information relating to an individual’s pri- law against such interference or attacks. vate life the knowledge of which is essential in “States Parties shall protect the privacy of per- the interests of society as understood under the sonal, health and rehabilitation information of Covenant.” (Human Rights Committee, General persons with disabilities on an equal basis with Comment No. 16, 1988, HRI/GEN/1/Rev.8, para. 7, others.” (Article 22) p. 182) Implementation Handbook for the Convention on the Rights of the Child 206

235 The Committee has raised concerns about Privacy in juvenile justice, child searches of children: protection and other proceedings “... the Committee is also concerned about reports of children in alternative care being In addition to article 16, article 40 requires, in the subject to an increasing number of searches case of children alleged as or accused of having (New of their person and their belongings.” infringed the penal law, “to have his or her pri- Zealand CRC/C/15/Add.216, para. 31) vacy fully respected at all stages of the proceed- ings” (see page 615). “The Committee is concerned that children’s right to privacy is not fully respected, in In its General Comment No. 10 on “Children’s particular, with regard to the searching of rights in Juvenile Justice”, the Committee com- a child’s belongings, and the fact that staff ments in detail on the right to privacy: in institutions may interfere with a child’s personal correspondence. “The right of the child to have his/her i c t l “The Committee recommends that the State privacy fully respected in all stages of the r e a Party: proceedings reflects the right to protection (a) Ensure the full implementation of a child’s of privacy enshrined in article 16. ‘All stages right to privacy, including with respect to of the proceedings’ includes from the initial personal correspondence and searching of contact with law enforcement (e.g., a request personal effects; for information and identification) up until (b) Amend the Minimum Standards for Child the final decision by a competent authority Welfare Institutions so as to bring them into or release from supervision, custody or conformity with article 16 of the Convention.” deprivation of liberty. It is in this particular (Japan CRC/C/15/Add.231, paras. 33 and 34) context meant to avoid harm caused by undue publicity or by the process of labelling. Privacy for those whose liberty is restricted. No information shall be published that may The United Nations Rules for the Protection lead to the identification of a child offender of Juveniles Deprived of their Liberty has vari- because of its effect of stigmatization, and ous relevant provisions. First, there is the general possible impact on their ability to obtain principle in rule 13 which states that juveniles an education, work, housing or to be safe. deprived of their liberty must not be denied any It means that a public authority should be entitlement under national or international law to very reluctant with press releases related to offences allegedly committed by children and civil or other rights that are compatible with the limit them to very exceptional cases. They deprivation of liberty; in addition, there are spe- must take measures to guarantee that children cific provisions relating to files (see page 209), are not identifiable via these press releases. design and physical environment, personal Journalists who violate the right to privacy effects, visits, correspondence (see page 210) and of a child in conflict with the law should the conduct of personnel. be sanctioned with disciplinary and when necessary (e.g., in case of recidivism) with The design of detention facilities for juveniles and penal law sanctions.” (Committee on the Rights the physical environment should pay due regard to of the Child, General Comment No. 10, 2007, the juvenile’s need for privacy (rule 32); sanitary CRC/C/GC/10, para. 23l) installations should be so located and of a suffi- cient standard to enable every juvenile “to comply, The Committee notes that in order to protect the as required, with their physical needs in privacy privacy of the child, most States Parties have as and in a clean and decent manner” (rule 34). a rule – sometimes with the possibility of excep- Rule 35 states that “The possession of personal tions – that the court or other hearings of a child effects is a basic element of the right to privacy accused of an infringement of the penal law and essential to the psychological well-being of should take place behind closed doors. This rule the juveniles. The right of every juvenile to pos- allows for the presence of experts or other profes- sess personal effects and to have adequate storage sionals with the special permission of the court. facilities for them should be fully recognized and Public hearings in juvenile justice should only be respected...” Circumstances for visits to the juve- possible in well-defined cases and with a written nile should “respect the need of the juvenile for decision of the court. Such a decision should be privacy, contact and unrestricted communication open to appeal by the child. with the family and the defence counsel” (rule It recommends that all States Parties should intro- 60). Personnel involved with juveniles deprived duce the rule that court and other hearings of a of their liberty “should respect the right of the child in conflict with the law should be conducted juvenile to privacy and, in particular, should safe- behind closed doors. Exceptions to this rule guard all confidential matters concerning juve- should be very limited and be clearly stated in the niles or their families learned as a result of their law. The verdict/sentence should be pronounced professional capacity” (rule 87(e)). CHILD’S RIGHT TO PRIVACY 207

236 in public at a session of the court in such a way Covenant on Civil and Political Rights, which requires that “any judgement rendered in a crim- that the identity of the child is not revealed: inal case or in a suit at law shall be made pub- “The right to privacy (art. 16) requires all lic except where the interest of juvenile persons professionals involved in the implementation of the measures taken by the court or another otherwise requires or the proceedings concern competent authority to keep all information matrimonial disputes or the guardianship of chil- that may result in identification of the child dren” (article 14(1)). confidential in all their external contacts. In the outline prepared for its Day of General Furthermore, the right to privacy also means Discussion on “The child and the media”, the that the records of child offenders shall be kept strictly confidential and closed to third Committee noted the importance of the child’s parties except for those directly involved right to privacy in media reporting not only of in the investigation, adjudication and juvenile justice cases but also of child abuse and disposition of the case. With a view to avoiding family problems (see article 17, page 218): i c t l r e a stigmatization and/or prejudgements, records “It is important that the media themselves do of child offenders shall not be used in adult not abuse children. The integrity of the child proceedings in subsequent cases involving should be protected in reporting about, for the same offender (see the ‘Beijing Rules‘, instance, involvement in criminal activities, rules 21.1 and 21.2), or to enhance such future sexual abuse and family problems. Fortunately, sentencing. The Committee recommends States the media in some countries have voluntarily Parties to introduce rules which would allow agreed to respect guidelines which offer such for an automatic removal from the criminal protection of the privacy of the child; however, records the name of the child who committed such ethical standards are not always adhered an offence upon reaching the age of 18, or to.” (Committee on the Rights of the Child, Report for certain limited, serious offences where on the eleventh session, January 1996, CRC/C/50, removal is possible at the request of the child, Annex IX, p. 80) if necessary under certain conditions (e.g. not having committed an offence within two years Among the recommendations that arose during (Committee on the after the last conviction).” the General Discussion was one that stated spe- Rights of the Child, General Comment No. 10, 2007, cific guidelines should be prepared for reporting CRC/C/GC/10, para. 23 l. See also article 40, page on child abuse, 601.) “... on how to report and at the same time The United Nations Standard Minimum Rules protect the dignity of the children involved. for the Administration of Juvenile Justice, the Special emphasis should be placed on the issue of not exposing the identity of the child.” “Beijing Rules”, expands on the provision in art- (Committee on the Rights of the Child, Report on icle 40 of the Convention. Rule 8.1 states: “The the thirteenth session, September/October 1996, juvenile’s right to privacy shall be respected at CRC/C/57, para. 256) all stages in order to avoid harm being caused to her or him by undue publicity or by the process of It has raised these issues with individual States: labelling. 2. In principle, no information that may “The Committee notes with concern that ‘the lead to the identification of a juvenile offender identity of child offenders, rape victims or shall be published.” children in difficult circumstances continues to be disclosed in the media’ (para. 124), which The official Commentary to the Rules explains: is a clear infringement of article 16 of the “Rule 8 stresses the importance of the protection Convention. of the juvenile’s right to privacy. Young persons “The Committee urges the State Party to are particularly susceptible to stigmatization. establish mechanisms to ensure that all Criminological research into labelling processes materials broadcast in Nepal respect the child’s right to privacy such as a code of conduct has provided evidence of the detrimental effects and/or self-regulation, and to ensure that (of different kinds) resulting from the permanent appropriate human rights training is given identification of young persons as ‘delinquent’ or to media professionals, paying particular ‘criminal’. Rule 8 also stresses the importance of attention to children’s rights to privacy.” (Nepal protecting the juvenile from the adverse effects CRC/C/15/Add.261, paras. 45 and 46) that may result from the publication in the mass media of information about the case (for example “The Committee shares the State Party’s concern that the privacy of children who have been the names of young offenders, alleged or con- victims of abuse or in conflict with the law is victed). The interest of the individual should be not always respected by the press, as certain protected and upheld, at least in principle.” newspapers continue to report cases in a Particular protection of the privacy of juveniles is manner that makes it easy to identify the child, publish their photograph and names or make also provided for in article 14 of the International Implementation Handbook for the Convention on the Rights of the Child 208

237 the child relate the details of the abuse. The be arbitrary and must be in line with the whole Committee also notes that there is no legislation Convention. The child should know who else has to ensure children’s privacy by the media. access. “The Committee recommends that the The Human Rights Committee, in its General State Party take all necessary legislative measures to fully protect the right of the Comment on the similar article on privacy rights child to privacy and to support the initiatives in the International Covenant, states: “The gather- of the Ombudsperson for Children in this ing and holding of personal information on com- domain, including the proposals of drafting puters, data banks and other devices, whether by a Code of Ethics. In addition, the Committee public authorities or private individuals or bod- recommends that the State Party provide ies, must be regulated by law. Effective measures trainings on the principles and provisions have to be taken by States to ensure that infor- of the Convention to chief editors and mation concerning a person’s private life does (Mauritius CRC/C/MUS/CO/2, journalists.” i c paras. 35 and 36) t l not reach the hands of persons who are not autho- r e a rized by law to receive, process and use it, and “While noting the existence of national is never used for purposes incompatible with the legislation which protect children’s right to Covenant. In order to have the most effective pro- privacy and despite the efforts of the State tection of his private life, every individual should Party, the Committee notes with concern have the right to ascertain in an intelligible form, that the identities and photos of child victims are presented in the media, which is a clear whether, and if so, what personal data is stored infringement of article 16 of the Convention in automatic data files, and for what purposes. and of domestic law respecting the privacy of Every individual should also be able to ascertain the child. which public authorities or private individuals or “The Committee urges the State Party to bodies control or may control their files. If such establish mechanisms such as a code of files contain incorrect personal data or have been conduct and/or self-regulation to ensure that collected or processed contrary to the provisions all materials broadcast in Thailand respect of the law, every individual should have the right the child’s right to privacy. The Committee also urges the State Party to ensure that to request rectification or elimination.” (Human appropriate human rights training is given Rights Committee, General Comment No. 16, to media professionals, paying particular 1988, HRI/GEN/1/Rev.8, para. 10, p. 183) attention to children’s rights to privacy.” In relation to files used in juvenile justice sys- (Thailand CRC/C/THA/CO/2, paras. 35 and 36) tems, the “Beijing Rules” (which the Committee The public advertising of children for fostering has commended as providing appropriate mini- or adoption may raise issues of privacy where it mum standards) requires in rule 21(1): “Records involves using photographs and intimate details of juvenile offenders shall be kept strictly confi- of children without their informed consent. dential and closed to third parties. Access to such records shall be limited to persons directly con- Files on children cerned with the disposition of the case at hand and other duly authorized persons.” Rule 21(2): Most children have some records or reports writ- “Records of juvenile offenders shall not be used ten about them and stored – in health, educa- in adult proceedings in subsequent cases involv- tion, social services, and juvenile justice systems ing the same offender.” The official commentary (see also article 8 on preservation of the child’s states: “The rule attempts to achieve a balance identity, page 114). Rights to privacy require that between conflicting interests connected with legislation should ensure that the child records or files: those of the police, prosecution knows of the existence of information stored and other authorities in improving control versus • about him or her; the interests of the juvenile offender (see also rule 8). ‘Other duly authorized persons’ would gener- knows why such information is stored and by • ally include, among others, researchers.” whom it is controlled; The United Nations Rules for the Protection of has access to such records, whether stored • Juveniles Deprived of their Liberty provides manually or by electronic means; more detail: “All reports, including legal records, is able to challenge and, if necessary, correct • medical records and records of disciplinary pro- their content, if necessary through recourse to ceedings, and all other documents relating to the an independent body. form, content and details of treatment, should be placed in a confidential individual file, which Legislation should limit who else has access to the information stored; such access must not should be kept up to date, accessible only to CHILD’S RIGHT TO PRIVACY 209

238 “Searches of a person’s home should be restricted authorized persons and classified in such a way to a search for necessary evidence and should not as to be easily understood. Where possible, every be allowed to amount to harassment.” (Human juvenile should have the right to contest any fact Rights Committee, General Comment No. 16, or opinion contained in his or her file so as to 1988, HRI/GEN/1/Rev.8, para. 8, p. 182) permit rectification of inaccurate, unfounded or unfair statements. In order to exercise this right, Thus “home” will include, for some children, there should be procedures that allow an appro- places of alternative care, including various priate third party to have access to and to consult categories of residential institutions, boarding the file on request. Upon release, the records of schools, places of detention, long-stay hospitals juveniles shall be sealed, and, at an appropriate and so forth. time, expunged.” (Rule 19) Any arrangements permitting interference with a child’s home, such as searching it, must be set out “family” i c t l r e in the law and must not be arbitrary, must be com- a The term “family” has a broad interpretation patible with the other principles and provisions of under the Convention on the Rights of the Child, the Convention, and must be reasonable in the including parents “or, where applicable, the mem- particular circumstances. Eviction of a family bers of the extended family or community as pro- from its home would have to meet these tests. For vided for by local custom” (article 5), and the children living in alternative care, moves from Committee has emphasized this interpretation one “home” to another or closure of an institution in its examination of States Parties’ reports (see must not unreasonably breach the child’s right. article 5, page 76). The child must have access to a complaints pro- cedure and appropriate remedies in cases of vio- In its General Comment on privacy, quoted above, lation of the right. the Human Rights Committee states: “Regarding the term ‘family’, the objectives of the Covenant “or correspondence” require that for purposes of article 17 this term be given a broad interpretation to include all All children have the right not to have their cor- those comprising the family as understood in the respondence – letters and other forms of commu- society of the State Party concerned...” (Human nication, including telephone calls – interfered Rights Committee, General Comment No. 16, with arbitrarily or unlawfully, in their family or 1988, HRI/GEN/1/Rev.8, para. 5, p. 182) wherever else they may be. Any arrangements permitting interference with a The Committee commented to Austria: child’s family must be set out in the law and must “The Committee is concerned at the not be arbitrary, must be compatible with the information from children and adolescents other principles and provisions of the Convention, that their right to privacy, for example, with and must be reasonable in the particular circum- regard to personal correspondence, is not fully stances. Article 9 is especially relevant, set- respected in everyday life. ting out the conditions for any separation of the “The Committee recommends that the State Party take the necessary measures, such as child from his or her parents. Article 16 extends awareness-raising and educational campaigns, this to the child’s wider family, such as siblings to improve the understanding of and respect or grandparents, who may be as important to the for the child’s right to privacy among parents child. The child must have access to a complaints and other professionals working for and with procedure and appropriate remedies in cases of children.” (Austria CRC/C/15/Add.251, paras. 33 violation of the right. and 34) Article 37(c) of the Convention specifically Any arrangements permitting interference with a requires that the child deprived of his or her lib- child’s correspondence, such as opening, reading, erty “shall have the right to maintain contact with or limiting it and so forth, must be set out in the his or her family through correspondence and law and must not be arbitrary, must be compati- visits, save in exceptional circumstances”. ble with the other principles and provisions of the Convention and must be reasonable in the partic- “home” ular circumstances. The child must have access to a complaints procedure and appropriate remedies The Human Rights Committee interprets “home” in cases of violation of the right. as follows: “The term ‘home’ in English ... is to be understood to indicate the place where a per- The Human Rights Committee commented on son resides or carries out his usual occupation”. the privacy article in the Covenant: “Compliance The Human Rights Committee also notes that with article 17 requires that the integrity and Implementation Handbook for the Convention on the Rights of the Child 210

239 media”, the Committee on the Rights of the confidentiality of correspondence should be guar- and de jure . Correspondence anteed de facto Child expressed concern at images of chil- should be delivered to the addressee without inter- dren – both individual and collective images – ception and without being opened or otherwise portrayed by the media (see also article 17, read. Surveillance, whether electronic or other- page 218): wise, interceptions of telephonic, telegraphic and “In their reporting the media give an ‘image’ other forms of communication, wire-tapping and of the child; they reflect and influence recording of conversations should be prohibited...” perceptions about who children are and how (Human Rights Committee, General Comment they behave. This image could create and No. 16, HRI/GEN/1/Rev.8, para. 8, p. 182) convey respect for young people; however, it could also spread prejudices and stereotypes As noted above, under article 37 of the Convention which may have a negative influence on public on the Rights of the Child, every child deprived opinion and politicians. Nuanced and well- i c of liberty has the right to maintain contact with t l r e a informed reporting is to the benefit of the his or her family through correspondence and rights of the child...” (Committee on the Rights of visits, save in exceptional circumstances. The the Child, Report on the eleventh session, January United Nations Rules for the Protection of 1996, CRC/C/50, Annex IX, pp. 80 and 81) Juveniles Deprived of their Liberty states: “Every The Committee commented on media attacks on juvenile should have the right to communicate in children in Nicaragua: writing or by telephone at least twice a week with “The Committee shares the concern expressed the person of his or her choice, unless legally by the State Party about the fact that restricted, and should be assisted as necessary in children are often abused in the media to the order effectively to enjoy this right. Every juve- detriment of their personality and status as nile should have the right to receive correspon- minors... dence.” (Rule 61) “The Committee recommends that, on an urgent basis, measures be taken to ensure the “nor to unlawful attacks protection of the child from information and on his or her honour material injurious to his or her well-being and to protect the child’s right to privacy, in the or reputation” light of the provisions of articles 16 and 17 of the Convention.” (Nicaragua CRC/C/15/Add.36, Most, if not all, countries have laws to protect paras. 17 and 34) adults from attacks on their honour or reputa- tion – both verbal attacks (slander) and attacks in The child’s right to writing and/or through the media (libel). This pro- the protection of the law vision requires that the child should be protected against such interference equally under the law. The law must set out the or attacks: article 16(2) protection, and the child must have an effective remedy in law against those responsible. As noted above, in its General Comment, the The Human Rights Committee comments on the Human Rights Committee states that interfer- identically worded provision in the International ence with the right to privacy can only take place Covenant on Civil and Political Rights: “Article in ways defined in law, which must not be arbi- 17 affords protection to personal honour and trary, must comply with the provisions, aims and reputation and States are under an obligation to objectives of the Covenant (similarly, in relation provide adequate legislation to that end. Provision to article 16 of the Convention on the Rights of must also be made for everyone effectively to the Child, interference must comply with the be able to protect himself against any unlaw- principles and provisions of the Convention) and ful attacks that do occur and to have an effec- be reasonable in the particular circumstances. tive remedy against those responsible.” (Human In addition the State should enable individuals Rights Committee, General Comment No. 16, to complain when they believe their rights have 1988, HRI/GEN/1/Rev.8, para. 11, p. 183) been violated and to have appropriate remedies (Human Rights Committee, General Comment As noted above, in the report of its 1996 Day of General Discussion on “The child and the No. 16, 1988, HRI/GEN/1/Rev.8, para. 6, p. 182). Guidelines for Periodic Reports (Revised 2005) Reporting guidelines: see (CRC/C/58/Rev.1), Appendix 3, page 699. CHILD’S RIGHT TO PRIVACY 211

240 i c t l r e a Implementation Checklist General measures of implementation • Have appropriate general measures of implementation been taken in relation to article 16, including: identification and coordination of the responsible departments and agencies at all ■ ■ levels of government (article 16 is relevant to departments of social welfare, justice, education, media and communications )? ■ ■ identification of relevant non-governmental organizations/civil society partners? ■ a comprehensive review to ensure that all legislation, policy and practice is ■ compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation which includes where necessary the identification of goals and indicators of ■ ■ progress? ■ which does not affect any provisions which are more conducive to the rights of ■ the child? ■ ■ which recognizes other relevant international standards? ■ ■ which involves where necessary international cooperation? (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole.) budgetary analysis and allocation of necessary resources? ■ ■ ■ ■ development of mechanisms for monitoring and evaluation? ■ ■ making the implications of article 16 widely known to adults and children? development of appropriate training and awareness-raising (in relation to article 16 ■ ■ all those working with or for children and their likely to include the training of )? families, and parenting education Specific issues in implementing article 16 • Does legislation specifically recognize the right of the child to protection from arbitrary or unlawful interference with his or her privacy? ■ ■ ■ family? ■ ■ home? ■ ■ ■ correspondence? ■ ■ Does the legislation conform to all the other principles and provisions of the Convention? Does legislation prevent such interference by state agencies? ■ ■ ■ by others, including private bodies? ■ Implementation Handbook for the Convention on the Rights of the Child 212

241 i c t l r e a see page XIX How to use the checklist, ■ Is the only permitted interference with the child’s privacy, family, home and ■ correspondence set out in legislation? Does the legislation in each case ensure that such interference is not arbitrary? ■ ■ conforms with all other principles and provisions of the Convention? ■ ■ is reasonable in the particular circumstances? ■ ■ ■ ■ Are these legislative protections available to all children without discrimination? Does the right to protection from arbitrary or unlawful interference with privacy apply to the child in the home? ■ ■ ■ in all forms of alternative care? ■ ■ ■ in schools? in other institutions of all kinds, both state-run and other? ■ ■ In relation to the child in a residential and/or custodial institution, are there special safeguards of the child’s right to privacy in relation to ■ physical environment and design? ■ ■ ■ visits and communication? ■ personal effects? ■ ■ ■ conduct and training of staff? Does the child have a right to receive confidential counselling without the consent of his/her parents on legal matters ■ ■ at any age? ■ ■ from a specific age? under criteria related to the child’s maturity and capacities? ■ ■ on medical matters at any age? ■ ■ ■ ■ from a specific age? under criteria related to the child’s maturity and capacities? ■ ■ ■ Does legislation protect children from arbitrary and unlawful interference with their ■ family, including members of their extended family? ■ ■ Does legislation protect children from arbitrary and unlawful interference with their home, including placements in alternative care outside the family home? Do any limits on the right to protection from arbitrary or unlawful interference with the child’s correspondence, including by mail, telephone and all other means, conform with the Convention’s principles ■ ■ in the child’s home? ■ ■ in alternative care? in institutional care? ■ ■ ■ ■ in places of detention? CHILD’S RIGHT TO PRIVACY 213

242 i c t l r e a How to use the checklist, see page XIX Does the child have the following rights in relation to any information kept about him or her in files or records stored either manually or through electronic means: to know of the existence of the information? ■ ■ to know of the purpose of collecting and storing it, and who controls it? ■ ■ ■ ■ to have access to it? to be able to challenge and, if necessary, correct anything contained in it? ■ ■ to know in each case who controls access to the information? ■ ■ ■ ■ to know who else has access to the information and for what purpose(s)? to be able to control who else has access to the information? ■ ■ in the event of any dispute over realization of this right, to appeal to an ■ ■ independent body? ■ In the event of possible violation of any of these rights, does the child have access to ■ an appropriate complaints procedure? ■ In cases of violation, does the child have appropriate remedies, including ■ compensation? ■ Are any limitations on any of these rights of the child based only on age and/or lack ■ of maturity and understanding? Does legislation guarantee the child’s right to privacy, in particular to ensure that nothing which may lead to the child’s identification is published in any way, in the case of ■ children alleged as, accused of, or recognized as having infringed the penal ■ law? ■ ■ children involved in child protection investigations and proceedings? children involved in family proceedings? ■ ■ Is there provision for the consideration and resolution of complaints from children ■ ■ regarding breaches of their rights under article 16? ■ Does legislation protect the child from unlawful attacks on his or her honour and ■ reputation? Have appropriate measures been taken to encourage the media to respect children’s ■ ■ rights under this article? Implementation Handbook for the Convention on the Rights of the Child 214

243 i c t l r e a How to use the checklist, see page XIX Reminder : The Convention is indivisible and its articles interdependent. Article 16 should not be considered in isolation. Particular regard should be paid to: The general principles Article 2: all rights to be recognized for each child in the jurisdiction without discrimination on any ground Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 6: right to life and maximum possible survival and development Article 12: respect for the child’s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child Closely related articles Articles whose implementation is particularly related to that of article 16 include: Article 8: preservation of identity Article 9: privacy in family proceedings Article 17: role of the media Article 19: privacy for victims of violence Article 20: privacy in alternative care Article 40: not identifying children involved in juvenile justice system CHILD’S RIGHT TO PRIVACY 215

244 UNICEF/5391/Isaac

245 c l i t e r Child’s a access to appropriate information ... Text of Article 17 States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall: (a) Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29; (b) Encourage international cooperation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources; (c) Encourage the production and dissemination of children’s books; (d) Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous; (e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18. rticle 17 is particularly focused aged to disseminate positive material of benefit on the role of the mass media in to the child and in line with the detailed aims for relation to children’s rights but education set out in article 29. The media should includes a general obligation on A also be accessible to the child, promoting and States Parties to ensure that the child has access Summary respecting the participatory rights to respect for to information and material from diverse sources the views of children (article 12). – especially those aimed at promoting well- The Committee on the Rights of the Child has being and physical and mental health. This is noted the key role that the media can play in closely linked to the child’s right to freedom of expression (article 13), and to maximum devel- making the principles and provisions of the opment (article 6). The media must be encour- Convention on the Rights of the Child widely CHILD’S ACCESS TO APPROPRIATE INFORMATION 217

246 known to children and adults, in fulfilment of the sion, one member of the Working Group sug- Convention’s article 42. The media can also be gested that the media did more good than harm crucial in exposing and reporting on breaches of and that the article should be phrased in a posi- the rights of the child. tive way (E/CN.4/L.1575, pp. 19 and 20, Detrick, p. 279). The final version of the article proposes During the drafting of the Convention, article five actions for States Parties to fulfil in order 17 started out as a measure simply to protect the to achieve the article’s overall aim; only the last child “against any harmful influence that mass concerns protecting the child from harmful mate- media, and in particular the radio, film, tele- rial, although this is the action that tends to get vision, printed materials and exhibitions, on most attention in the Committee’s examination of account of their contents, may exert on his mental and moral development”. But early in its discus- States’ reports. ■ i c t l r e a The child and the media Committee on the Rights of the Child, Day of General Discussion, 1996: recommendations The following recommendations arose during the plenary and working group sessions of the Day of General Discussion: 1. Child media: A dossier should be compiled on positive, practical experiences of active child participation in the media. 2. Child forum within Internet: The UNICEF-initiated “Voices of Youth” on the World Wide Web should be promoted and advertised as a positive facility for international discussion on impor- tant issues among young people. 3. Active child libraries: The experience of dynamic child libraries, or child departments within public libraries, should be documented and disseminated. 4. Media education: Knowledge about the media, their impact and their functioning should be imparted in schools at all levels. Students should be enabled to relate to and use the media in a participatory manner, as well as to learn how to decode media messages, including in advertis- ing. Good experiences in some countries should be made available to others. 5. State support to media for children: There is a need for budgetary support to ensure the pro- duction and dissemination of children’s books, magazines and papers, music, theatre and other artistic expressions for children, as well as child-oriented films and videos. Assistance through international cooperation should also support media and art for children. 6. Constructive agreements with media companies to protect children against harmful influences: Facts should be gathered about various attempts at voluntary agreements with media companies on positive measures, such as not broadcasting violent programmes during certain hours, clear presentations before programmes about their content and the development of technical devices such as ‘V-chips’, to help consumers to block out certain types of programmes. Likewise, expe- riences with respect to the introduction of voluntary ethical standards and mechanisms to encourage respect for them should be assembled and evaluated; this should include an analysis of the effectiveness of existing codes of conduct, professional guidelines, press councils, broad- casting councils, press ombudsmen and similar bodies. 7. Comprehensive national plans to empower parents in the media market: Governments should initiate a national discussion on means to promote positive alternatives to the negative tenden- cies of the media market, to encourage media knowledge and to support parents in their role as guides to their children in relation to electronic and other media. An international workshop should be organized to promote a discussion on this approach. 8. Advice on implementation of article 17 of the Convention on the Rights of the Child: A study should be conducted with the purpose of developing advice to Governments on how they could encourage the development of “guidelines for the protection of the child from information and Implementation Handbook for the Convention on the Rights of the Child 218

247 material injurious to his or her well-being.” Such a study should also serve the purpose of assist- ing the Committee on the Rights of the Child in drafting a General Comment on article 17. 9. Specific guidelines for reporting on child abuse: To encourage further discussion in newsrooms and within the media community as a whole, guidelines should be drafted by appropriate jour- nalism bodies on how to report on abuse of children and at the same time protect the dignity of the children involved. Special emphasis should be placed on the issue of not exposing the iden- tity of the child. 10. Material for journalism education on child rights: Material should be produced to assist journal- ism and media schools on child rights standards; established procedures for child rights moni- toring; existing international, regional and national institutions working with children; as well as basic aspects of child development. The manual planned by the Centre for Human Rights of i c t l r e a the United Nations as a tool for journalists’ education on human rights should be widely dis- seminated when it is produced. 11. Network for media watchgroups: The positive work of media watchgroups in various coun- tries should be encouraged and good ideas transferred between countries. The purpose is to give media consumers a voice in the discussion on media ethics and children. A focal point for exchanges should be established. 12. Service to “child rights correspondents”: Interested journalists should be invited to sign up on a list of “child rights correspondents”. They should be provided regularly with information about important child issues and with interesting reports by others, and be seen as media advisers to the international child rights community. (Committee on the Rights of the Child, Report on the thirteenth session, September/October 1996, CRC/C/57, paras. 242 et seq .) provisions that children should not only be The “important function able to consume information material but performed by the mass media” also to participate themselves in the media. This requires that there exist media which In the report of its Day of General Discussion on communicate with children. The Committee “The child and the media”, the Committee on the on the Rights of the Child has noted that Rights of the Child stressed various media roles in there have been experiments in several relation to full implementation of the Convention countries to develop child-oriented media; on the Rights of the Child, including, but going some daily newspapers have special pages for beyond, the scope of article 17: children and radio and television programmes also devote special segments for the young “The Committee on the Rights of the Child audience. Further efforts are, however, believes that the media – both written and needed.” (Committee on the Rights of the Child, audiovisual – are highly important in the Report on the eleventh session, January 1996, efforts to make reality [of] the principles CRC/C/50, Annex IX, pp. 80 and 81. For the and standards of the Convention. The media Committee’s comments on the potentially harmful in many countries have already contributed influence of the media, see below, page 225.) greatly in creating an awareness of the Convention and its content. The media could The Committee returned to this theme in recom- also play a pivotal role in monitoring the actual mendations adopted following its 2006 Day of implementation of the rights of the child...” General Discussion on “The right of the child to The Committee also highlighted the importance be heard”: of children having access to the media: “The Committee recognizes the essential role “Finally, the media is important for offering played by media in promoting awareness of children the possibility of expressing the right of the child to express their views and themselves. One of the principles of the urges various forms of media, such as radio Convention is that the views of children be and television, to dedicate further resources heard and given due respect (art. 12). This to including children in the development of is also reflected in articles about freedom programmes and allowing for children to of expression, thought, conscience and develop and lead media initiatives on their (Committee on the Rights of the Child, rights.” religion (arts. 13-14). It is in the spirit of these CHILD’S ACCESS TO APPROPRIATE INFORMATION 219

248 Report on the forty-third session, September 2006, children’s access to appropriate information, Day of General Discussion, Recommendations, sometimes in particular regions, for example rural para. 36) areas, and has proposed some specific solutions: “The Committee is concerned that children Ensuring the child “has access have poor access to information. to information ... from a “The Committee recommends that the State Party improve children’s access to information, diversity of national and by providing greater access to inter alia international sources” newspapers and libraries, including materials – especially those aimed (Central in the Sango language, and to radio...” at promoting well-being and African Republic CRC/C/15/Add.138, paras. 42 physical and mental health and 43) “The Committee notes with concern that The Committee regards article 17 as one of chil- i c t l r e a children living in the outer islands do not have dren’s civil rights and frequently expresses a adequate access to information and material general concern at the lack of attention paid to from a diversity of national and international implementation of children’s civil rights and sources aimed at promoting the child’s freedoms, including those provided by articles 13, development and physical and mental health... 14, 15, 16 and 17. “The Committee recommends that the State Party reinforce measures for the production This section of article 17 provides the overall aim of programmes and books for children and for the five particular strategies outlined in para- disseminate them within the country, in graphs (a) to (e). They are related to the child’s par- particular the outer islands, and in this regard ticipation rights under article 12 and the right to envisage taking steps for the introduction of freedom of expression under article 13(1), which (Marshall the use of computers in schools...” “shall include freedom to seek, receive and impart Islands CRC/C/15/Add.139, paras. 34 and 35) information and ideas of all kinds, regardless of “The Committee is concerned that children and frontiers, either orally, in writing or in print, in their families who do not speak, read or write the form of art, or through any other media of the Greek fluently, and children from some isolated child’s choice” (see page 177). They relate to the regions of the State Party and from some role of the media in promoting the child’s maxi- distinct ethnic, religious, linguistic or cultural mum development under article 6, and also to the groups do not always have adequate access to aims of education (article 29), and the need for information regarding, for example, welfare or health education (article 24). In addition, article legal assistance, and information reflecting the 31 states the right of the child to participate freely multicultural nature of the State Party... and fully in cultural and artistic life, and the “The Committee recommends that the State State’s obligation to encourage the provision of Party: appropriate and equal opportunities; here, too, the (a) Make additional efforts to ensure that all children and their families have access to media can play an important role (see page 469). essential information regarding their rights, In its General Comment No. 7 on “Implementing giving particular attention to isolated groups child rights in early childhood”, the Committee and those who do not communicate easily in refers to the information needs of young children Greek; (and also to the need to protect them from harm- (b) Promote the development and accessibility, including through radio and television, of ful information – see below, page 225): a wide variety of information reflecting “... Early childhood is a specialist market for the cultural diversity of the State Party’s publishers and media producers, who should (Greece CRC/C/15/Add.170, population;...” be encouraged to disseminate material that paras. 46 and 47) is appropriate to the capacities and interests of young children, socially and educationally “The Committee is concerned that: beneficial to their well-being, and which (a) Children have insufficient access to reflects the national and regional diversities of appropriate information; children’s circumstances, culture and language. (b) Children living in rural communities are Particular attention should be given to the particularly disadvantaged;... need of minority groups for access to media “The Committee recommends that the State that promote their recognition and social Party: inclusion...” (Committee on the Rights of the (a) Continue and strengthen its efforts Child, General Comment No. 7, 2005, CRC/C/GC/7/ to ensure that all children have access to Rev.1, para. 35) appropriate information, for example The Committee has noted both controls on through further elaboration of radio information, limiting its diversity, and gaps in programmes for children, the provision of Implementation Handbook for the Convention on the Rights of the Child 220

249 how to protect their health and development radios and newspapers for use by groups of children in schools and other contexts, and and practise healthy behaviours. This should through itinerant theatre presentations;...” include information on the use and abuse, of (Mozambique CRC/C/15/Add.172, paras. 36 tobacco, alcohol and other substances, safe and 37) and respectful social and sexual behaviours, diet and physical activity.” (Committee on the “The Committee notes that article 22 of the Rights of the Child, General Comment No. 4, 2003, 1993 Child Law refers to access to information, CRC/GC/2003/4, para. 26) but is concerned that many children, notably In its General Comment No. 3 on “HIV/AIDS and those living in remote and border areas, do not have adequate access to appropriate the rights of the child”, the Committee empha- information. sizes the need for information on prevention and “In the light of article 17, the Committee care and information to combat ignorance, stig- recommends that the State Party take all matization and discrimination, through both appropriate measures to ensure that all i c t l r e a formal channels (e.g., through educational oppor- children, in particular those in remote and tunities and child-targeted media) as well as border areas, are provided with adequate informal channels (e.g., those targeting street chil- (Myanmar CRC/C/15/ access to information.” Add.237, paras. 36 and 37) dren, institutionalized children or children living in difficult circumstances) (General Comment “The Committee expresses concern about No. 3, 2003, CRC/GC/2003/3, paras. 16 and 17). the fact that all sources of information For further discussion of health information, see – and media in particular – are subject to article 24, page 359. Government’s control and do not allow for diversity. Furthermore, the Committee, The Children whose liberty is restricted. sharing the concerns recently expressed by United Nations Rules for the Protection of the Committee on the Elimination of Racial Juveniles Deprived of their Liberty highlights Discrimination, regrets that access to foreign access to the media: “Juveniles should have the culture and media, including the Internet, is opportunity to keep themselves informed regu- very limited. “The Committee recommends that the State larly of the news by reading newspapers, peri- Party, in line with articles 13 and 17 of the odicals and other publications, through access to Convention, ensure the right of the child radio and television programmes and motion pic- to access information and material from a tures...” (Rule 62) Special consideration may need diversity of national and international sources, to be given to children’s access to the media in especially those aimed at the promotion of his any institutional placement and in other special or her social, spiritual and moral well-being circumstances. and physical and mental health. The State Party should also take steps to expand access (Turkmenistan CRC/C/TKM/ to the Internet...” “Encourage the mass media to CO/1, paras. 32 and 33) disseminate information and material of social and cultural Health promotion benefit to the child and in In the Convention on the Rights of the Child, accordance with the spirit of another particular reference to children’s need for information appears under article 24, in which article 29”: article 17(a) States Parties are required to take appropri- Article 29(1) sets out the aims for the education ate measures to ensure that parents and children of the child. Article 17 suggests that the content are informed about child health and various spe- of information and material disseminated by the cific health issues (article 24(2)(e)). Here, too, the media should be in accordance with these aims, media can play an important role. The Committee which are directed to: addresses this in two General Comments. In its General Comment No. 4 on “Adolescent health development of the child’s personality, talents • and development in the context of the Convention and mental and physical abilities to their full- on the rights of the child”, it states: est potential; “Adolescents have the right to access development of respect for human rights and adequate information essential for their • fundamental freedoms, and for the princi- health and development and for their ability to participate meaningfully in society. It is the ples enshrined in the Charter of the United obligation of States Parties to ensure that all Nations; adolescent girls and boys, both in and out of development of respect for school, are provided with, and not denied, • the child’s parents; accurate and appropriate information on • CHILD’S ACCESS TO APPROPRIATE INFORMATION 221

250 and cultural benefit to the child, in line and the child’s cultural identity, language and • with the spirit of articles 17 and 29 of the values; Convention. To that aim, the State Party should the national values of: provide children with access to diversity of • ◆ the country in which the child is living; cultural, national and international sources, ◆ particularly taking into account the linguistic the country from which he or she may and other needs of children who belong to originate; (Croatia CRC/C/15/Add.243, a minority group.” civilizations different from his or her own; • paras. 22, 35 and 36) preparation of the child for responsible life in • In 1978, the General Conference of UNESCO a free society, in the spirit of understanding, proclaimed the Declaration on Fundamental peace, tolerance, equality of sexes and friend- Principles concerning the Contribution of the ship among all peoples, ethnic national and Mass Media to Strengthening Peace and Interna- religious groups and persons of indigenous i c t l tional Understanding, to the Promotion of Human r e a origin; Rights and to Countering Racialism, Apartheid development of respect for the natural envi- and Incitement to War. • ronment. The World Conference against Racism, Racial In its first General Comment on “The aims of Discrimination, Xenophobia and Related Intol- education”, the Committee notes: erance (Durban, South Africa, September 2001) in its Declaration expresses deep concern “about “The media, broadly defined, also have a central role to play both in promoting the the use of new information technologies, such values and aims reflected in article 29(1) and in as the Internet, for purposes contrary to respect ensuring that their activities do not undermine for human values, equality, nondiscrimina- the efforts of others to promote those tion, respect for others and tolerance, including objectives. Governments are obligated by the to propagate racism, racial hatred, xenophobia, Convention, pursuant to article 17(a), to take racial discrimination and related intolerance, all appropriate steps to ‘encourage the mass and that, in particular, children and youth hav- media to disseminate information and material ing access to this material could be negatively of social and cultural benefit to the child’.” inf luenced by it.” (A/CONF.189/12, Declaration, (Committee on the Rights of the Child, General Comment No. 1, 2001, CRC/GC/2001/1, para. 21. para. 91) See also article 29, page 439.) Another of the aims set out in article 29 is pro- The Committee has emphasized the responsibil- moting equality of the sexes. The report of the ity of the media to contribute to fostering “under- Committee’s Day of General Discussion on “The standing, peace, tolerance” and so on, as set out girl child” refers to in article 29(1)(d): “... the importance of eradicating degrading and exploitative images of girls and women “The Committee also recommends, in the in the media and advertising. The values and interests of healing and trust-building within models of behaviour that were portrayed the country and in the spirit of article 17 of contributed to the perpetuation of inequality the Convention, that the State-controlled (Committee on the Rights of the and inferiority.” mass media should play an active role in the Child, Report on the eighth session, January 1995, efforts to secure tolerance and understanding CRC/C/38, para. 291) between different ethnic groups, and that the broadcasting of programmes which would Under the Convention on the Rights of Persons run counter to this obje ctive come to an end.” with Disabilities, adopted in December 2006, (Croatia CRC/C/15/Add.52, para. 20) States undertake to adopt immediate, effec- When it examined Croatia’s Second Report, the tive and appropriate measures to encourage all Committee re-emphasized this: organs of the media “to portray persons with disabilities in a manner consistent with the pur- “The Committee reiterates its recommendation that the State Party takes measures aimed pose of the present Convention” (article 8(2)(c)). at developing a culture of tolerance in the The Standard Rules on the Equalization of society at large through all possible channels, Opportunities for Persons with Disabilities, in including the schools, the media and the law... rule 1 on “Awareness-raising”, proposes: “States “... the Committee is also concerned with the should encourage the portrayal of persons with lack of adequate measures to encourage the disabilities by the mass media in a positive way; mass media to disseminate information which organizations of persons with disabilities should would promote the spirit of understanding of be consulted on this matter.” In addition, rule 9 differences. suggests that the media should be encouraged “The Committee ... urges the State Party to to play an important part in removing negative disseminate information and material of social Implementation Handbook for the Convention on the Rights of the Child 222

251 attitudes “towards marriage, sexuality and par- material that should be available to the child. enthood of persons with disabilities, especially of Modern technology is dramatically affecting the girls and women with disabilities, which still pre- instant dissemination of information, increas- vail in society.” ing the potential of the media for education and development, while also raising concerns about Further advice on the role of the media in the the aims and content of some information being positive socialization of children is given in the made available to children. United Nations Guidelines for the Prevention of Juvenile Delinquency, the Riyadh Guidelines, “Encourage the production and which the Committee on the Rights of the Child dissemination of children’s has consistently commended as providing appro- books”: article 17(c) priate standards for implementation of the Convention on the Rights of the Child. Within the Late in the drafting process of article 17, a non- section on “Socialization processes”, a subsection i c t l r e a governmental organization proposed that there on the mass media reads: should be a specific provision to promote chil- “40. The mass media should be encouraged to dren’s reading. The International Board on Books ensure that young persons have access to infor- for Young People proposed a new subparagraph: mation and material from a diversity of national “Encourage, at all levels, literacy and the read- and international sources. ing habit through children’s book production and dissemination, as well as the habit of story- 41. The mass media should be encouraged to por- telling” (E/CN.4/1987/25, p. 7; Detrick, p. 287). tray the positive contribution of young persons to The provision in subparagraph (c) developed from society. this proposal. 42. The mass media should be encouraged to dis- UNESCO has for many years promoted publi- seminate information on the existence of services, cation of children’s literature, together with the facilities and opportunities for young persons in major professional bodies and NGOs. society. 43. The mass media generally, and the television The Committee commends States which ensure and film media in particular, should be encour- access to books, congratulating Madagascar, for aged to minimize the level of pornography, drugs example, on and violence portrayed and to display violence “... the establishment of a library in all schools” and exploitation disfavourably, as well as to avoid (Madagascar CRC/C/15/Add.218, para. 36) demeaning and degrading presentations, espe- and Latvia on cially of children, women and interpersonal rela- “... the measures taken by the State Party tions, and to promote egalitarian principles and to encourage reading among children, in roles. particular, through educational and library 44. The mass media should be aware of its exten- (Latvia CRC/C/LVA/CO/2, paras. 28 programmes.” and 29) sive social role and responsibility, as well as its influence, in communications relating to youth- But it also expresses concern on occasions. ful drug and alcohol abuse. It should use its power For example: for drug abuse prevention by relaying consistent “In the light of articles 13 and 17 of the messages through a balanced approach. Effective Convention, the Committee is concerned drug awareness campaigns at all levels should be that the quality and quantity of printed promoted.” information, including children’s books, available to children has decreased in recent “Encourage international years, while at the same time there is a lack cooperation in the production, of mechanisms to protect children from information and material injurious to their exchange and dissemination of well-being. Furthermore, the Committee is such information and material concerned that the amendments to the Media from a diversity of cultural, Law may limit access to information. national and international “The Committee recommends that the State sources”: article 17(b) Party take all effective measures, including enacting or reviewing legislation where This provision reflects a focus on international necessary, to ensure that the child’s freedom cooperation to achieve full implementation, of expression and the right of access to found throughout the Convention on the Rights information is guaranteed and implemented.” of the Child. It also emphasizes the diversity of (Kazakhstan CRC/C/15/Add.213, paras. 34 and 35) CHILD’S ACCESS TO APPROPRIATE INFORMATION 223

252 (d) Encouraging the mass media, including pro- “Encourage the mass media viders of information through the Internet, to to have particular regard to the make their services accessible to persons with linguistic needs of the child disabilities; who belongs to a minority (e) Recognizing and promoting the use of sign group or who is indigenous”: languages.” (Article 21) article 17(d) The Committee notes in its General Comment Article 30 (see page 455) requires that the child No. 9 on “The rights of children with disabilities”: who belongs to a religious or linguistic minority, “Access to information and communications, or who is indigenous, should not be denied the including information and communications right to enjoy his or her own culture, to profess technologies and systems, enables children and practice his or her own religion or to use his with disabilities to live independently and i c or her own language. The aims of education in t l r e participate fully in all aspects of life. Children a article 29 also require respect for varying national with disabilities and their caregivers should values, cultures and languages. Article 17 indi- have access to information concerning their disabilities that educates them on the process cates the important role the mass media should of disability, including causes, management be encouraged to play, for instance through and prognosis. This knowledge is extremely producing material and programmes in minority valuable as it not only enables them to adjust languages. to their disabilities, it also allows them to be involved and make informed decisions In commenting on the need to make the principles regarding their own care. Children with and provisions of the Convention on the Rights disabilities should also have the appropriate of the Child well known to adults and children technology and other services and languages, (under article 42, see page 627), the Committee e.g. Braille and sign language, that enables has often emphasized the importance of ensur- them to access all forms of media, including ing translation into minority and indigenous television, radio and printed material as well languages, and the particular importance of the as new information and communication media’s participation in this task. technologies and systems, such as the Internet.” (Committee on the Rights of the Child, Ensuring that children with disabilities have General Comment No. 9, 2006, CRC/C/GC/9, equal access to information through the media para. 37. See also article 23, page 321.) may require special and additional arrangements. Encourage the development The Convention on the Rights of Persons with of appropriate guidelines for Disabilities, adopted in December 2006, requires States Parties to it to take all appropriate mea- the protection of the child from sures to ensure that persons with disabilities can information and material exercise the right to freedom of expression and injurious to his or her well- opinion, including the freedom to seek, receive being, bearing in mind the and impart information and ideas on an equal provisions of articles 13 basis with others and through all forms of com- and 18”: article 17(e) munication of their choice, including by: Increasing concer n exists in many countries about “(a) Providing information intended for the gen- the potential negative effects on children’s devel- eral public to persons with disabilities in acces- opment, including physical and mental health, sible formats and technologies appropriate to of the projection of violence through the mass different kinds of disabilities in a timely manner media. In the report of its General Discussion and without additional cost; on “The child and the media”, the Committee on (b) Accepting and facilitating the use of sign lan- the Rights of the Child highlighted this point and guages, Braille, augmentative and alternative other negative aspects of the media: communication, and all other accessible means, “... Concern has also been expressed about the modes and formats of communication of their influence on children of negative aspects of choice by persons with disabilities in official the media, primarily programmes containing brutal violence and pornography. There is interactions; discussion in a number of countries about (c) Urging private entities that provide services to how to protect children from violence on the general public, including through the Internet, television, in video films and in other modern to provide information and services in accessible media. Again, voluntary agreements have been attempted, with varied impact. This and usable formats for persons with disabilities; Implementation Handbook for the Convention on the Rights of the Child 224

253 particular problem is raised in article 17 of specific guidelines for reporting on child abuse the Convention which recommends that (see box, page 218). appropriate guidelines be developed ‘for the The Committee frequently notes the absence of protection of the child from information and adequate protection from potentially injurious material injurious to his or her well-being’. material – including violence, racism and por- “Such guidelines have indeed been developed in some countries, with varied results...” nography – in its examination of States Parties’ (Committee on the Rights of the Child, Report on reports and it has proposed legislation and guide- the eleventh session, January 1996, CRC/C/50, lines as well as parent education. Its concerns Annex IX, pp. 80 and 81) have extended to cover modern information and communications technology, including the In Its General Comment No. 7 on “Implementing Internet and mobile telephones: child rights in early childhood”, the Committee highlights the particular dangers for young chil- “The Committee is concerned that children i c have easy access to pornographic DVDs sold t l dren: r e a locally. “... Rapid increases in the variety and “In the light of article 17(e) of the Convention, accessibility of modern technologies, including the Committee recommends that the Internet-based media, are a particular cause State Party take all necessary measures to for concern. Young children are especially at protect children from exposure to harmful risk if they are exposed to inappropriate or (Sao information, including pornography...” offensive material. States Parties are urged Tome and Principe CRC/C/15/Add.235, paras. 31 to regulate media production and delivery in and 32) ways that protect young children, as well as support parents/caregivers to fulfil their child- “The Committee is concerned at the absence rearing responsibilities in this regard (art. 18).” of appropriate laws or guidelines relating to (Committee on the Rights of the Child, General the sale or accessibility of CD-ROMs, video Comment No. 7, 2005, CRC/C/GC/7/Rev.1, para. 35) cassettes and games, and pornographic publications facilitating access of a child to Article 17 proposes guidelines, suggesting volun- information and materials which may be tary rather than legislative controls. In developing injurious to her or his well-being. guidelines, States Parties must bear in mind the “The Committee recommends that the State provisions in two other articles: Party take necessary measures, including legal ones, to protect children from harmful effects the child’s right to freedom of expression, • of violence and pornography, in particular, in which can only be subject to certain limited printed, electronic and audiovisual media.” restrictions, set out in paragraph 2 of article (France CRC/C/15/Add.240, paras. 27 and 28) 13 (see page 180); “While the Committee welcomes the State parents’ primary responsibility for the • Party’s measures in this respect... it still upbringing and development of the child, with expresses concern about the exposure of the child’s best interests as their basic concern, children to violence, racism and pornography, and the State’s obligation to provide appropri- especially through the Internet. ate assistance (article 18, see page 237). “The Committee recommends that the State Party continue and strengthen its efforts Article 5, requiring respect for parents’ rights to to protect children effectively from being provide appropriate direction and guidance con- exposed to violence, racism and pornography sistent with the evolving capacities of the child, through mobile technology, video movies, is also relevant. Ultimately, it is parents and other games and other technologies, including the caregivers who will have primary responsibility Internet. The Committee further suggests for supervising their child’s use of the media. The that the State Party develop programmes and strategies to use mobile technology, media State should assist parents, for example, by ensur- advertisements and the Internet to raise ing that they have adequate information about awareness among both children and parents the content of television programmes, videos, on information and material injurious to computer games, use of the Internet and mobile the well-being of children. The State Party technology and so on. is also encouraged to develop agreements with journalists and media with a view to The recommendations which arose from the protecting children from exposure to harmful Committee’s Day of General Discussion on “The information in the media and improving the child and the media” include developing con- quality of information addressed to them.” structive agreements with media companies to (Australia CRC/C15/Add.268, paras. 33 and 34) protect children against harmful influences, comprehensive plans to empower parents in “While welcoming the initiatives undertaken the media market, training of journalists, and by the Media Council to study children’s use CHILD’S ACCESS TO APPROPRIATE INFORMATION 225

254 from being exposed to harmful material such of the Internet and develop a set of ‘rules of the road’ for such use, the Committee is as violence and pornography, transmitted nevertheless concerned about the amount through the media and Internet.” (Thailand of unsuitable and illegal material that can be CRC/C/THA/CO/2, paras. 37 and 38) found on the Internet. Privacy of the child and the media “The Committee encourages the State Party One potential threat to the well-being of the child to ensure that children are protected from posed by the media relates to the child’s right to information and material harmful to their well-being, in conformity to article 17(e) of the privacy (see article 16, page 208). In addition, Convention.” (Denmark CRC/C/DNK/CO/3, article 40(2)(b)(vii) requires respect in media cov- paras. 29 and 30) erage for the privacy of children involved in the juvenile justice system (see article 40, page 615), “... While noting that the draft Measures for and the Committee has raised similar concerns the Suppression of Provocative Materials Act about the privacy of child victims of abuse and of is pending before the Cabinet, the Committee i c t l r e a is concerned that some of the materials family problems. published in the media and available through Guidelines on witnesses and victims the Internet are harmful to the child. Further, The Guidelines on Justice in Matters involving the Committee, while noting the efforts of the Child Victims and Witnesses of Crime highlights Ministry for Information and Communication Technology, expresses its concern that no this in a section on privacy: “Child victims and systematic media-monitoring mechanisms witnesses should have their privacy protected as a exist at the national and subnational levels matter of primary importance. to protect children from being exposed to “Information relating to a child’s involvement in harmful information, such as violence and pornography, transmitted through the media the justice process should be protected. This can and through the Internet. be achieved through maintaining confidentiality “The Committee recommends that, through and restricting disclosure of information that may cooperation with radio and television lead to identification of a child who is a victim or broadcasters, mechanisms be established witness in the justice process. to monitor and improve the quality and suitability of media programming produced “Measures should be taken to protect chil- primarily for children and youth. Further, the dren from undue exposure to the public by, for Committee recommends, in light of article 17 example, excluding the public and the media from of the Convention, that the State Party take all the courtroom during the child’s testimony, where necessary legal and other measures, including permitted by national law.” (Economic and Social advisory campaigns directed to parents, Council resolution 2005/20, July 2005, section X, guardians and teachers, and cooperation with Internet service providers to protect children paras. 26 to 28) Reporting guidelines: see Guidelines for Periodic Reports (Revised 2005) (CRC/C/58/Rev.1), Appendix 3, page 699. Implementation Handbook for the Convention on the Rights of the Child 226

255 i c t l r e a Implementation Checklist • General measures of implementation Have appropriate general measures of implementation been taken in relation to article 17, including: identification and coordination of the responsible departments and agencies ■ ■ departments of media and at all levels of government (article 17 is relevant to )? communications, social welfare and education ■ ■ identification of relevant non-governmental organizations/civil society partners? a comprehensive review to ensure that all legislation, policy and practice is ■ ■ compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation which includes where necessary the identification of goals and indicators of ■ ■ progress? which does not affect any provisions which are more conducive to the rights of ■ ■ the child? which recognizes other relevant international standards? ■ ■ ■ ■ which involves where necessary international cooperation? (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole.) ■ budgetary analysis and allocation of necessary resources? ■ ■ development of mechanisms for monitoring and evaluation? ■ making the implications of article 17 widely known to adults and children? ■ ■ development of appropriate training and awareness-raising (in relation to article 17 ■ ■ likely to include the training of journalists and all those involved in the mass media, and developing appropriate including the Internet, and media education, parenting education) ? Specific issues in implementing article 17 • ■ ■ Has the State taken measures to ensure that all children in the jurisdiction have access to information and material from a diversity of national and international sources, especially those aimed at the promotion of the child’s social, spiritual and moral well-being and physical and mental health? Is such access assured to all children without discrimination, in particular ■ children of minorities and children who are indigenous? ■ ■ children with disabilities? ■ children in all categories of institutions, including custodial institutions? ■ ■ Has the State encouraged the mass media to disseminate information and material of social and cultural benefit to the child, and to promote aims set out in article 29 including: development of the child’s full potential? ■ ■ development of respect for human rights and fundamental freedoms? ■ ■ CHILD’S ACCESS TO APPROPRIATE INFORMATION 227

256 i c t l r e a How to use the checklist, see page XIX development of respect for the child’s parents? ■ ■ the child’s cultural identity, language and values? ■ ■ the national values of ■ ■ the country in which the child is living? ■ the country from which he or she may originate? ■ civilizations different from his or her own? ■ ■ ■ ■ preparation of the child for responsible life in a free society? ■ development of respect for the natural environment? ■ In particular, has the mass media been encouraged to promote understanding and friendship among all peoples, including minorities and ■ ■ indigenous people? ■ ■ equality between the sexes, in line with the proposals of the Platform for Action of the Fourth World Conference on Women? ■ ■ positive portrayal of people with disabilities, in accordance with the Convention on the Rights of Persons with Disabilities and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities? positive socialization of children, in accordance with the provisions of the ■ ■ United Nations Guidelines on the Prevention of Juvenile Delinquency? Does the State encourage international cooperation in the production, exchange ■ ■ and dissemination of such information and material from a diversity of cultural, national and international sources? ■ Has the State taken measures to encourage the production and dissemination of ■ children’s books? Has the mass media been encouraged to have particular regard for the linguistic ■ ■ needs of children who belong to minorities or are indigenous? Has the mass media been encouraged to help with health promotion and education? ■ ■ ■ Has the mass media been encouraged to help disseminate information on the ■ Convention to adults and children? ■ ■ t of guidelines and training programmes Has the State encouraged the developmen to promote the participation of children in relation to radio, print media, film and video, the Internet, and other media? Has the State encouraged the development of guidelines and monitoring procedures for the protection of the child from information and material injurious to his or her well-being in relation to ■ ■ television? ■ radio? ■ film and video? ■ ■ ■ the Internet? ■ ■ ■ other media? Implementation Handbook for the Convention on the Rights of the Child 228

257 i c t l r e a How to use the checklist, see page XIX If so, are such guidelines consistent with ■ the child’s right to freedom of expression under article 13 and the restrictions ■ allowed on that right set out in paragraph 2? ■ the responsibilities of parents and others and of the State set out in article 18? ■ ■ ■ Has the State ensured that parents and other carers are provided with sufficient information on the content of media programmes, videos, computer games and so on to enable them to fulfil their responsibilities for the welfare of the child? ■ ■ Has the State promoted the development of appropriate media education for children? ■ ■ Has the State encouraged the development of parenting education relating to protection of the child from injurious information and material? ■ ■ Are there guidelines and other safeguards, including training, to promote respect by the media for the child’s right to privacy, and for responsible reporting of abuse, family problems and juvenile justice? Reminder : The Convention is indivisible and its articles interdependent. Article 17 should not be considered in isolation. Particular regard should be paid to: The general principles Article 2: all rights to be recognized for each child in the jurisdiction without discrimination on any ground Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 6: right to life and maximum possible survival and development Article 12: respect for the child’s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child Closely related articles Articles whose implementation is particularly related to that of article 17 include: Article 5: parental responsibilities and child’s evolving capacities Article 9: reporting on family proceedings – the child’s privacy Article 13: right to freedom of expression Article 16: the child’s right to privacy Article 18: primary responsibility of parents Article 19: reporting on violence and abuse – privacy for child victims Article 24: health education and promotion Article 29: aims of education Article 30: rights of children of minorities and of indigenous communities to enjoy their own culture, religion and language Article 31: promoting child’s right to play, recreation and participation in culture and the arts Article 34: role of the media in challenging sexual exploitation, including child pornography Article 36: other forms of exploitation by the media Article 40: reporting on juvenile justice – privacy for child Article 42: making the Convention widely known to children and adults CHILD’S ACCESS TO APPROPRIATE INFORMATION 229

258 UNICEF/HQ96-0245/Toutounji

259 c l i t e r a Parents’ joint responsibilities assisted by the State ... Text of Article 18 1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians have the primary responsibility for the upbring- ing and development of the child. The best interests of the child will be their basic concern. 2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children. 3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible. rticle 18 concerns the balance of rights under the Convention and may be shared responsibilities between the child’s with others such as members of the wider fam- parents and the State, and particu- ily. The State must take appropriate steps to assist larly emphasizes State support for A Summary parents in fulfilling their responsibilities, and if parents in the performance of their responsibili- parents cannot manage this, the State must step ties. Article 18 must be read in conjunction with in to secure the child’s rights and needs. article 5 (parental and family duties and rights, Article 10 of the International Covenant on the child’s evolving capacities) and articles 3(2) Economic, Social and Cultural Rights provides and 27 (the State’s responsibility to assist par- that: “The widest possible protection and assis- ents in securing that children have adequate pro- tance should be accorded to the family, which is tection and care and an adequate standard of the natural and fundamental group unit of soci- living). These four articles of the Convention, ety, particularly for its establishment and while taken together, make clear that parents have pri- it is responsible for the care and education of mary responsibility for securing the best inter- dependent children” and “Special measures of ests of the child as their “basic concern”, but that this responsibility is circumscribed by the child’s protection and assistance should be taken on PARENTS’ JOINT RESPONSIBILITIES ASSISTED BY THE STATE 231

260 (Democratic Republic of the impact on children.” behalf of all children and young persons with- Congo CRC/C/15/Add.143, para. 36) out any discrimination”. Articles 23 and 24 of the International Covenant on Civil and Political It has also asked several countries in Africa and Rights repeat these principles and, in addition, the Middle East to examine the effect of polyg- provide: “No one shall be subjected to arbitrary amy on children, for example Yemen: or unlawful interference with his privacy, fam- “The Committee... recommends that the ily, home or correspondence” (article 17). The State Party undertake an in-depth and Committee on Economic, Social and Cultural comprehensive study on the impact of Rights states in a General Comment: “In this and polygamy with a view to finding out whether other contexts, the term ‘family’ should be inter- polygamy has negative consequences on the upbringing and development of the child and, preted broadly and in accordance with appropri- if so, to develop measures to address those ate local usage.” (General Comment No. 5, 1994, negative impacts.” (Yemen CRC/C/15/Add.267, HRI/GEN/1/Rev.8, para. 30, p. 31) i c t l r e para. 48) a The requirements of the Human Rights In one sense, article 18 seems to be about par- Committee are more detailed: “Responsibility ents’ rather than about children’s rights. However for guaranteeing children the necessary protec- the assertion of parents’ primacy is made in rela- tion lies with the family, society and the State. tion to the State, not the child, and the article is Although the Covenant does not indicate how about parental responsibilities rather than rights. such responsibility is to be apportioned, it is pri- Responsibility for the child’s ‘development’ sug- marily incumbent on the family, which is inter- gests a relatively objective measure for assess- preted broadly to include all persons composing ing parents’ exercise of their responsibilities. it in the society of the State Party concerned, and Development is an extremely wide concept (see particularly on the parents, to create conditions article 6, page 93, article 27, page 395 and article to promote the harmonious development of the 29, page 440). If a child’s physical, psychological child’s personality and his enjoyment of the rights or intellectual development is being impaired by recognized in the Covenant. However, since it the avoidable actions of the parents, then the par- is quite common for the father and mother to be ents can be found to be failing in their responsi- gainfully employed outside the home, reports bilities. by States Parties should indicate how society, social institutions and the State are discharging “The best interests of the child their responsibility to assist the family in ensur- will be their basic concern” ing the protection of the child.” (Human Rights Committee, General Comment No. 17, 1989, HRI/ When article 18 was being drafted, the delegate ■ GEN/1/Rev.8, para. 6, p. 184) from the United States of America commented that it was rather strange to set down responsibil- “Parents or, as the case may ities for private individuals, since the Convention be, legal guardians, have the could only be binding on ratifying governments primary responsibility for the (E/CN.4/1989/48, pp. 50 to 52; Detrick, p. 270). upbringing and development The imperative tense used here does at first sight of the child” seem odd. How can the State secure that the child’s best interests “will be” the parents’ basic Article 18 makes a clear statement support- concern? But the principle does have direct bear- ing the primacy of parents; although elsewhere ing on the actions of States, because they write (articles 5 and 30), the Convention recognizes all legislation on parents’ rights. Most nations that family structures vary and that children’s of the world have a history of laws and customs wider family, tribe, community or culture can that assumes parental “ownership” of children play an important role in the child’s upbringing. – an assumption that parental rights over chil- However, the Committee has expressed concern dren could be exercised for the benefit of the about social structures in which the parents’ role parents alone. These laws and customs are now may be diminished to the detriment of children, being rethought in many parts of the world. The for example to the Democratic Republic of the Convention requires that current legal principles Congo: of parental rights be translated into principles of “The Committee is concerned... at the parental responsibilities – the legal responsibility increasing practice of ‘bi-linear’ families under of parents to act in the best interests of their chil- which a community leader assumes parental dren. The Committee sometimes comments on responsibilities for children and that this practice is replacing parents and has a negative traditional or paternalistic views of children that Implementation Handbook for the Convention on the Rights of the Child 232

261 requirements for physical nurturance, are held by parents and authorities. An extreme emotional care and sensitive guidance, as example of parental ownership of children was well as for time and space for social play, given by Mozambique: exploration and learning... “The Committee remains concerned that... as “... Situations which are most likely to noted by the State Party in its initial report, impact negatively on young children include ‘parents and other family members frequently neglect and deprivation of adequate do not fulfil their obligation to guide the parenting; parenting under acute material minors under their responsibility’ and that or psychological stress or impaired mental weaknesses in family structures have led to the health; parenting in isolation; parenting which greater vulnerability of children... Children are is inconsistent, involves conflict between sometimes used to settle financial and other parents or is abusive towards children; disputes, with families sending their children and situations where children experience to work for periods of time to settle debts...” disrupted relationships (including enforced (Mozambique CRC/C/15/Add.172, para. 40) i c t l separations)... r e a “The Committee is concerned that insufficient While sometimes the State can reasonably argue account is taken of the resources, skills and that it cannot control parents, on other occa- personal commitment required of parents sions its laws are directly responsible for parental and others responsible for young children, neglect – for example, in the Sudan: especially in societies where early marriage “The Committee is concerned that... the severe and parenthood is still sanctioned as well legal penalties applied to women who become as in societies with a high incidence of pregnant outside of marriage are such that young, single parents. Early childhood is the many women and adolescent girls seek to period of most extensive (and intensive) conceal their pregnancies and then abandon parental responsibilities related to all aspects their newborn children, and that the survival of children’s well being covered by the rate of these children is extremely low.” (Sudan Convention: their survival, health, physical CRC/C/15/Add.190, para. 37) safety and emotional security, standards of living and care, opportunities for play As has been discussed in relation to articles 3 and learning, and freedom of expression. (page 35) and 9 (page 127), “the best interests Accordingly, realizing children’s rights is of the child” are not written on tablets of stone. in large measure dependent on the well They will vary from child to child. Parents may being and resources available to those with have quite different views on what are a particu- responsibility for their care.” (Committee on lar child’s best interests; professionals, too, may the Rights of the Child, General Comment No. 7, 2005, CRC/C/GC/7/Rev.1, paras. 5, 18 and 20. See not agree with each other about what is best. The box on page 242 for summary.) child’s rights under the Convention are therefore helpful in making the concept less subjective. And on older children: Any breach of these rights (including failure to “The Committee believes that parents or other respect children’s evolving capacities) is likely to persons legally responsible for the child need be contrary to the child’s best interests. to fulfil with care their right and responsibility to provide direction and guidance to their The Committee has addressed rights-based par- adolescent children in the exercise by the enting in General Comment No. 4 on “Adolescent latter of their rights. They have an obligation health and development in the context of the to take into account the adolescents’ views, in Convention on the Rights of the Child” and accordance with their age and maturity, and to General Comment No. 7 on “Implementing provide a safe and supportive environment in On the parent- child rights in early childhood” . which the adolescent can develop. Adolescents ing of young children, the Committee encourages need to be recognized by the members of their family environment as active rights holders States: who have the capacity to become full and “... to construct a positive agenda for rights in responsible citizens, given the proper guidance early childhood. A shift away from traditional and direction.” (Committee on the Rights of the beliefs that regard early childhood mainly as Child, General Comment No. 4, CRC/GC/2003/4, a period for the socialization of the immature para. 7) human being towards mature adult status is required. The Convention requires that Parent education children, including the very youngest children, The State has a duty to advise and educate par- be respected as persons in their own right. ents about their responsibilities. Investment in Young children should be recognized as parent education, on a non-compulsory basis, is active members of families, communities and increasingly recognized as being cost-effective, societies, with their own concerns, interests for example in terms of lowering children’s delin- and points of view. For the exercise of their rights, young children have particular quency rates. The United Nations Guidelines PARENTS’ JOINT RESPONSIBILITIES ASSISTED BY THE STATE 233

262 is concerned that a significant number of for the Prevention of Juvenile Delinquency (the families find such fees a disincentive to seeking Riyadh Guidelines) states: “Measures should be needed help and assistance. The Committee taken and programmes developed to provide fam- recommends that the State Party review its ilies with the opportunity to learn about parental policies in this regard so as to facilitate access roles and obligations as regards child development to family counselling services, in particular for and childcare, promoting positive parent-child the more vulnerable groups.” (Sweden relationships, sensitizing parents to the problems CRC/C/15/Add.101, para. 16) of children and young persons and encourag- When examining Sweden’s Third Report, the ing their involvement in family and community- Committee regretted that this recommendation based activities.” (para. 16) (Sweden had been “insufficiently addressed” In a General Discussion on “States’ role in . CRC/C/15/Add.248, para. 4) preventing and regulating separation”, the In its General Comment No. 7 on “Implementing Committee i c t l r e a child rights in early childhood”, the Committee “... emphasizes the importance to allocate recommends to States that: resources for parenting skills rather than resort “... (c) Assistance to parents will include to separation. The Committee also reminds provision of parenting education, parent families and family associations of their very counselling and other quality services for important educative role for other families. mothers, fathers, siblings, grandparents It is often easier to address the question of parenting at the peer-to-peer level within and others who from time to time may be communities. The Committee encourages responsible for promoting the child’s best all stakeholders to seek innovative ways and interests; methods to improve parenting skills, including (d) Assistance also includes offering support introducing parenting skills training into the to parents and other family members in school curricula.” (Committee on the Rights of the ways that encourage positive and sensitive Child, Report on the fortieth session, September relationships with young children and enhance 2005, CRC/C/153, para. 646) understanding of children’s rights and best interests. The Committee has stressed in its Concluding “The principle that parents (and other primary Observations to many countries the need for caregivers) are children’s first educators is parental education measures, for example: well established ... They are expected to “... Greater efforts should be made to provide provide appropriate direction and guidance to family life education and develop awareness young children in the exercise of their rights, of the responsibility of the parents. The and provide an environment of reliable and Committee encourages non-governmental affectionate relationships based on respect organizations and children and youth groups and understanding (art. 5). The Committee to pay attention to the need to change invites States Parties to make this principle a attitudes as part of their advocacy action.” starting point for planning early education, in (Philippines CRC/C/15/Add.29, para. 22) two respects: (a) In providing appropriate assistance to “The Committee urges the State Party ... parents in the performance of their child to take immediate preventive measures rearing responsibilities (art. 18.2), States to avoid separation of children from their Parties should take all appropriate measures family environment by providing appropriate to enhance parents’ understanding of their assistance and support services to parents and role in their children’s early education, legal guardians in the performance of their encourage child rearing practices which are child-rearing responsibilties, including through child centred, encourage respect for the education, counselling and community-based child’s dignity and provide opportunities for programmes for parents...” (Lebanon CRC/C/ developing understanding, self esteem and LBN/CO/3, para. 44) self confidence; (b) In planning for early childhood, States The Committee sees support for parent education Parties should at all times aim to provide as an effective tool for tackling serious social ills, programmes that complement the parents’ such as the social dislocation following economic role and are developed as far as possible in transition or armed conflict, but has also stressed partnership with parents, including through its importance in countries with highly developed active cooperation between parents, welfare systems. For example, the Committee professionals and others in developing ‘the observed to Sweden: child’s personality, talents and mental and “While noting that some municipalities offer physical abilities to their fullest potential’ (art. family counselling free of charge, and that (Committee on the Rights of the Child, 29.1(a)).” the fee being charged in other municipalities General Comment No. 7, 2005, CRC/C/GC/7/Rev.1, may not seem too high, the Committee paras. 20 and 29) Implementation Handbook for the Convention on the Rights of the Child 234

263 “The Committee recommends that continuing The State shall use its “best attention be given to the risks of early efforts to ensure recognition of parenthood and single parenthood, to the the principle that both parents promotion of higher levels of involvement of have common responsibilities fathers in the upbringing and development of for the upbringing and the child, and to the need to provide necessary (Barbados support to children in these cases.” development of the child” CRC/C/15/Add.103, para. 20) The importance of both parents having common Many countries document large numbers of chil- responsibilities for children should be emphasized. dren living in one-parent families – usually with Most societies have only recently recognized that the mother. The Committee has often expressed fathers, as well as mothers, can and should under- concern about this phenomenon, a concern that take the day-to-day care of their children, and that does not relate to the state of marriage but to the mothers, as well as fathers, have financial respon- i c t l r e a need of children to have both parents actively sibilities and legal rights in relation to children. involved in their upbringing and to the greater The Convention is one of the first treaties to see likelihood of poverty for children in one-parent this as a human right of children, ref lecting the families. Its causes are various, including those provision in the Convention on the Elimination described in Jamaica: of All Forms of Discrimination against Women “... The difficult domestic employment (1979), which requires the recognition by States situation and its negative influence on the Parties of “... the common responsibility of men family situation, e.g. the practice of “child and women in the upbringing and development of shifting” and situations where one or their children, it being understood that the inter- both parents migrate, leaving the children est of the children is the primordial consideration behind...” (Jamaica CRC/C/15/Add.210, para. 34) in all cases” (article 5). Or Equatorial Guinea: Countries are encouraged to highlight this princi- “The Committee is concerned ... by the fact ple in their laws and provision of services, as well that less than 50 per cent of children live with as their parent education measures: both parents due to various factors including “The Committee recommends that further urbanization, very-large-scale poverty, the measures be undertaken to educate parents increase of HIV/AIDS, a deterioration of about their responsibilities towards their traditional solidarity and a high level of children, including through the provision of promiscuity.” (Equatorial Guinea CRC/C/15/ family education which should emphasize the Add.245, para. 36) (United equal responsibilities of both parents...” Kingdom CRC/C/15/Add.34, para. 30) Countries that do not enable fathers of chil- dren born outside marriage to assume paren- The Committee regretted that there had been no tal responsibilities risk being in breach of the (United progress on this at the Second Report Convention (bearing in mind that article 9 Kingdom CRC/C/15/Add.188, para. 4). allows for parents and children to be separated “The Committee is concerned at the large when necessary for the child’s best interests). number of children who are not acknowledged The Committee made the following proposals to by their fathers and the inadequate measures Mongolia: taken to force fathers to be responsible for the welfare of their children. “The Committee recommends that the “... the Committee recommends that the State Party take all necessary measures State Party promote parent education and to provide parents and families with the family counselling and take measures to necessary financial and other support to ensure adherence to the principle that both t