This module is a resource for lecturers
Topic two - The Convention on the Rights of the Child and the international legal framework on children’s rights
The provisions of all international human rights treaties apply to children, including those of the International Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) - to name only two treaties of particular relevance to the rights of children in justice settings. Additionally, the international recognition of the distinct characteristics of childhood has marked an important development in international human rights law – with the drafting and near universal ratification of a human rights convention that enshrines the comprehensive set of rights held by children.
The Convention on the Rights of the Child (CRC), which entered into force in 1990, is the cornerstone of children’s rights globally. The most ratified human rights treaty in the world (United Nations, 2008), all UN Member States, with the exception of the United States of America, have agreed to be bound by the obligation to uphold children’s rights in all spheres of life. The comprehensive character of the CRC can be understood by recognizing that the covenant enshrines both economic, social and cultural rights as well as civil and political rights, with the Committee on the Rights of the Child confirming that both should be regarded as justiciable (General Comment No. 5, 2003, para 6). The CRC imposes legally binding obligations on States parties to respect, protect and fulfil the rights of the child.
Three Optional Protocols to the CRC
- Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (A/RES/54/263, 2000 (Entered into force on 18 January 2002)
- Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict A/RES/54/263, 2000 (Entered into force 12 February 2002)
- Optional Protocol to the Convention on the Rights of the Child on a communications procedure A/RES/66/138, 2011 (Entered into force 14 April 2014)
Building on the recognition that children are a particularly vulnerable group in society, the CRC sets forth a comprehensive set of obligations relating to measures that offer protection (i.e. from violence, Art. 19, or from arbitrary interference with privacy, Art. 16), as well as measures that relate to provision (i.e. access to healthcare services, Art. 24, and the right to education, Art. 28). It is important to note, however, that the CRC marked a departure from the earlier declarations on children’s rights (League of Nations, 1924; UN General Assembly, 1959), by recognizing that children are full and active bearers of rights who are entitled, inter alia, to the right to freedom of expression (Art. 13), the right to freedom of thought, conscience and religion (Art. 14), and the right to be heard, including in all matters that affect them (Art. 12). Accordingly, the CRC marks a watershed moment in which the scope of children’s rights moved beyond a welfare model (in which children were seen as objects in need of protection) to a comprehensive model in which States parties are required to protect, respect, and fulfil children’s rights not only to protection and provision, but also children’s rights to participation. These three categories of rights are sometimes referred to as the “Three P’s”.
The interdependence and indivisibility of human rights, including those enshrined in the CRC, means that when children come into contact with the justice system (whether as victims, witnesses or alleged as, accused of or recognized as having infringed the penal law) States parties are obliged to uphold all the rights enshrined in the CRC, not only those that pertain specifically to child rights in the administration of justice.
The general principles of the CRC
Interpretation and implementation of all rights enshrined in the CRC is guided by four general principles:
These principles play a particularly important role with respect to specialized juvenile justice, and should guide the actions of justice and other professionals in both conflict and non-conflict settings in which children are involved with justice systems (whether as victims, witnesses, or alleged as, accused of or recognized as having breached the penal law). From an operational point of view, it is important to note that the failure to implement one or more of these principles has the potential to impact on the child’s enjoyment of all other rights enshrined in the CRC. The significance of the principles to ensuring justice for children is elaborated further below.
Non-discrimination (CRC, article 2)
All children are entitled to the rights enshrined in the CRC, without discrimination of any kind. This includes a prohibition against discrimination on the basis of a child’s (or their parents’) “race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status” (CRC, article 2 (1)). The CRC imposes the positive obligation that States parties “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” (article 2 (2)).
The principle of non-discrimination is particularly important in justice settings, because justice-involved children are recognized as being at increased risk of enduring violence, secondary victimization, stigma and a range of deprivations (liberty, education, etc) as a result of their contact with formal or informal justice systems. While the composite forms of vulnerability mentioned here reflect a common baseline for children involved in justice processes, it is important to recognize that there are certain groups of children who endure additional forms of discrimination on the basis of their race, sex, class, sexual orientation, family/legal status, health status, disability, or a child’s religious and/or political views (or those of their family). Indeed, some children endure discrimination (and often violence) on multiple grounds.
Consider the case of an Indigenous girl, for example, who, after many years in alternative care, is taken into custody because she failed to present at court after being charged with using offensive language directed at a police officer. An intersectional analysis of a case such as this illustrates that the compounding factors of dispossession, adversity, trauma, and discrimination (on the grounds of sex, race, and family status), exacerbate the risks that this girl will likely face through her contact with justice actors and institutions. Indeed, in many jurisdictions, a brief custodial term for a breach of order might have the potential to result in a longer pre- or post-trial confinement (particularly in the absence of family supports). Scenarios of this kind, which are all too common, underscore the importance of the role that the guiding principle of non-discrimination plays with respect to upholding the rights of justice-involved children (irrespective of whether these children are victims, witnesses, or alleged as, accused of or recognized as having infringed the penal law).
The Committee on the Rights of the Child affirms that this non-discrimination obligation requires States to “actively identify individual children and groups of children” for whom “special measures” may be required, noting that non-discrimination does not necessarily mean “identical treatment” (General Comment No. 5, 2003, para 12). Legislative, procedural and educational changes are integral to efforts to address discriminatory law, policy and practice – including (but not limited to) justice settings. In justice settings, specific measures may be necessary to ensure that girls have full enjoyment of their rights (Ellsberg et al, 2017; SRSG-VAC, 2015).
The best interests of the child (CRC, article 3)
The CRC stipulates that the burden is on the State to ensure that the “best interests” of the child are a primary consideration “in all actions concerning children (CRC, article 3 (1)). The cross-cutting nature of this principle is confirmed by the Committee on the Rights of the Child as a means of ensuring “both the full and effective enjoyment of all the rights recognized in the Convention and the holistic development of the child” (Committee on the Rights of the Child, General Comment No. 14, 2013, para 4). Elaborating further on the importance of a holistic approach in the best interests of the child, the Committee on the Rights of the Child states:
The full application of the concept of the child's best interests requires the development of a rights-based approach, engaging all actors, to secure the holistic physical, psychological, moral and spiritual integrity of the child and promote his or her human dignity. (General Comment No. 14, 2013, para 5).
Achieving this requires the cooperation of a broad range of institutions and actors, and the United Nations Model Strategies and Practical Measures on the Elimination of Violence against Children in the Field of Crime Prevention and Criminal Justice identify the “complementary roles of the criminal justice system, child protection agencies, health, education and social service sectors and, in some cases, informal justice systems in creating a protective environment and preventing and responding to incidents of violence against children” (UN, 2014, GA Resolution 69/194, para 23).
In justice settings, the best interests of the child are served by adherence to the due process guarantees enshrined in the CRC, and through the implementation of diversionary measures, restorative justice, and measures to promote a child’s reintegration (Committee on the Rights of the Child, General Comment No. 10, para 3).
The right to survival and development (CRC, article 6)
All children have the inherent right to life, and States are obliged to do all possible to ensure their survival and development. This is important in terms of the recognition that justice for children is integral to ensuring that children have the opportunity to live peaceful, just and inclusive lives. This principle engages, inter alia, the obligations enshrined in article 39 of the CRC – requiring that States parties take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victims; as well as article 40, which requires that children alleged as, accused of or recognized as having infringed the penal law, be treated in a manner that is both consistent with their human dignity and worth, and conducive to the reintegrative aim that the child assumes a constructive role in society.
Importantly, the practical implementation of the principle of survival and development affirms the due process rights and other safeguards enshrined in the CRC (including articles 37 and 40) to prevent children from being harmed as a result of their involvement in justice processes. This includes the requirement that the deprivation of liberty be a measure of last resort for the shortest appropriate period of time (CRC, article 37 (b)). Further provisions to ensure the survival and development of the child, with respect to justice dispositions, include the international legal prohibition of the death penalty CRC, article 37(a); ICCPR, article 6(5)); and life imprisonment without the possibility of parole (CRC, article 37 (a)).
The right to be heard (CRC, article 12)
Children have the right to express their views freely in all matters affecting them, and their views must be given due weight in keeping with their maturity and age. This includes the obligation that children “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” (article 12 (2)).
In the context of justice for children, “children have the right to be heard directly … at all stages of the process ...”. Equally, however, children have “ the right to remain silent and no adverse inference should be drawn when children elect not to make statements” (Committee on the Rights of the Child, General Comment No. 24 2019, para 45). In justice settings, an array of practical provisions are required in order to realize a child’s right to be heard. These include: the right to free assistance of an interpreter (article 40 (2) (b) (vi)); the right to prompt legal and other appropriate assistance (art. 37 (d)); and the right to effective participation in the proceedings (article 40 (2) (b) (iv). The Committee on the Rights of the Child elaborates, as follows:
To effectively participate, a child needs to be supported by all practitioners to comprehend the charges and possible consequences and options in order to direct the legal representative, challenge witnesses, provide an account of events and to make appropriate decisions about evidence, testimony and the measure(s) to be imposed. Proceedings should be conducted in a language the child fully understands or an interpreter is to be provided free of charge. Proceedings should be conducted in an atmosphere of understanding to allow children to fully participate. Developments in child-friendly justice provide an impetus towards child-friendly language at all stages, child-friendly layouts of interviewing spaces and courts, support by appropriate adults, removal of intimidating legal attire and adaptation of proceedings,including accommodation for children with disabilities. (General Comment No. 24 2019, para 46)
The relationship between the general principles and substantive rights
These four general principles of the CRC are both substantive rights, insomuch as they are codified in the CRC and therefore impose an intrinsic obligation on States parties; and they are also general principles that underpin the interpretation and implementation of all the rights enshrined in the CRC. The failure to uphold any or all of these principles has the potential to compromise a child’s enjoyment of any or all of the substantive rights enshrined in the CRC and the three Optional Protocols thereto.