The United Nations Convention on the Rights of the Child : Taking Stock after 25 Years and Looking Ahead [1 ed.] 9789004295056, 9789004295049

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The United Nations Convention on the Rights of the Child





The United Nations Convention on the Rights of the Child Taking Stock after 25 Years and Looking Ahead Edited by

Ton Liefaard Julia Sloth-Nielsen

leiden | boston

 Library of Congress Cataloging-in-Publication Data Names: Liefaard, Ton, 1978- editor. | Sloth-Nielsen, Julia, editor. Title: The United Nations Convention on the Rights of the Child : taking stock after 25 years and looking ahead / edited by Ton Liefaard, Julia Sloth-Nielsen. Description: Leiden ; Boston : Brill/Nijhoff, 2017. Identifiers: LCCN 2016035055 (print) | LCCN 2016035437 (ebook) | ISBN 9789004295049 (hardback : alk. paper) | ISBN 9789004295056 (E-book) Subjects: LCSH: Convention on the Rights of the Child (1989 November 20)--History. | Children (International law) | Children’s rights. | Children--Legal status, laws, etc. | Sexually abused children--Legal status, laws, etc. | Children--Legal status, laws, etc.--United States. Classification: LCC K639.A41989 U55 2016 (print) | LCC K639.A41989 (ebook) | DDC 342.08/772--dc23 LC record available at https://lccn.loc.gov/2016035055

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-29504-9 (hardback) isbn 978-90-04-29505-6 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.



Contents Foreword xi Acknowledgements xii List of Contributors xiv 1 25 Years crc: Reflecting on Successes, Failures and the Future 1 Ton Liefaard and Julia Sloth-Nielsen

Part 1 Reflections on Different Children’s Rights Perspectives 2 The Convention on the Rights of the Child: 25 Years and Beyond 17 Vitit Muntarbhorn 3 Protecting Children across Borders: The Interaction between the crc and the Hague Children’s Conventions 31 Hans van Loon 4 Legal Challenges and Strategies for Combating Online Sexual Violence against Children: Making Children’s Rights Future-Proof 47 Corinne Dettmeijer-Vermeulen 5 Are ‘Best Interests’ a Pillar or a Problem for Implementing the Human Rights of Children? 61 Nigel Cantwell 6 Child Rights in the United States: 25 Years Later and Counting 73 Yvonne Vissing

Part 2 Towards More Effective Implementation 7 crc Dialogues: Does the Committee on the Rights of the Child ‘Speak’ to the National Courts? 103 Meda Couzens

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Access to Justice: A Fundamental Right for all Children 125 Laurene Graziani

9

The Role of the Professions in Effective Implementation of the crc 142 Jane Williams

10

Closing the Gap between Social and Formal Accountability: Exploring the Role of Independent Human Rights Institutions for Children 166 Vanessa Sedletzki

11

The Role of International Law in the Judicial Interpretation of New African Children’s Laws: The Kenyan Example 188 Godfrey O. Odongo

12

The Best Interests of the Child: A Guiding Principle in Administering Cross-Border Child-Related Matters? 213 Mirela Župan

13

The European Court of Human Rights’ Jurisprudence Regarding the Segregation of Roma Schoolchildren: A Children’s Rights Perspective 230 Zsuzsanna Nyitray

14

The Main Challenges of Implementing the Procedural Rights of the Child in the Family Justice Systems of Some Southeast European Countries 247 Slađana Aras Kramar and Ivana Milas Klarić

15

(Why) Should Children Have Rights? A Philosophical Perspective 272 Marieke Janne Hopman

16

The Voice of the Child in Juvenile Justice Procedures 294 Stephanie Rap

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Will New Zealand’s Youth Justice System Take the  Next Step? 316 Alison Cleland

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Children’s Rights and Australian Migration Law: Are they Mutually Exclusive? 341 Anna Copeland

19

Unaccompanied and Unprotected: The Systemic Vulnerability of Unaccompanied Migrant Children in South Africa 361 Kirsten Anderson, Kara Apland and Elizabeth Yarrow

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20 The Prevention of Child Statelessness at Birth: A Multilevel Perspective 390 Peter Rodrigues and Jill Stein 21

Protection of Internally Displaced Children and the Guiding Principles of Internally Displaced Persons 414 Rita Nunes

22

Protecting the Victims of Child Trafficking 433 Philip E. Veerman

Part 3 Frontiers of Children’s Rights Research 23

Child Rights Research for 2040: A European Commission Perspective 461 Margaret Tuite

24 A Future of Mess, Confusion and Complexity? Linking Children’s Rights and Knowledge Management in a Critical Research Agenda beyond 25 years of the Convention on the Rights of the Child 489 Sara Lembrechts 25 Protecting the Locus of Vulnerability: Preliminary Ideas for Guidance on Protecting the Rights of the Child in International Commercial Surrogacy 513 Claire Achmad 26 Taking Stock of Bullying and Cyberbullying Research and Introducing a Child Rights Perspective 541 Mona Paré, Tara Collins and Miad Ranjbar

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Child Rights as a Basis for the Regulation of Food Marketing: The Role of the un Convention on the Rights of the Child 564 Katharina Eva Ó Cathaoir

28 A Children’s Rights Audit of the International Criminal Court: Introducing a Measurement Matrix for Monitoring Institutions 589 Annelotte Walsh 29 Children behind Belgian Bars: Rights and Resistance against the Pains of Imprisonment 611 Esther de Graaf, Jenneke Christiaens and Els Dumortier 30 What the Children Thought: Some Methodological and Ethical Considerations in Comparative Child Research 634 Elisabeth Backe-Hansen 31

The Legal Effect of Best-Interests-of-the-Child Reports in Judicial Migration Proceedings: A Qualitative Analysis of Five Cases 655 Daan Beltman, Margrite Kalverboer, Elianne Zijlstra, Carla van Os and Daniëlle Zevulun

32 Article 12: The Translation into Practice of Children’s Right to Participation in Health Care 681 Ana Guerreiro and Kjersti Fløtten

Part 4 Time for Action: Legislation, Policy Development and Advocacy 33 Learning from Practice: Safe and Meaningful Child Participatory Child Rights Situation Analysis Methodology in (Post-) Conflict Settings 711 Annabel Trapp 34 To be Heard and Seen: Youth Participation as a Goal and as a Means to Improve Children’s Rights Situations 736 Karin Kloosterboer

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35 The Post-2015 Development Agenda: Effective, Structured and Sustainable Participation of Children in Decision-Making, Implementation and Follow-up 753 Alice Kooij Martinez 36 Enhancing Children’s Participation and the Enforcement of their Rights: The Kenyan Experience 767 Noah M.O. Sanganyi 37

unicef: Engaging Stakeholders on Children’s Rights 777 Florence Charrière

38 Socio-Legal Defence Model: Realising Children’s Rights 795 Benoit van Keirsbilck and Anna D. Tomasi 39 Advancing Children’s Rights through Parent Support Services 801 Pia M. van den Boom 40 Two for the Price of One: Building a Child Protection System through Social Protection Mechanisms 814 Mayke Huijbregts and Sumaira Chowdhury 41

Towards an Effective System for Child Protection and Prevention of Violence against Children in South America 835 Akemi Kamimura, Vanessa Orban Aragão Santos and Paula R. Ballesteros

42 Listening to Children and Parents: Seven Dimensions to Untangle High-Conflict Divorce 857 Sietske Dijkstra 43 Amendment of the Dutch Child Protection System: An Improvement for Children? 879 Goos Cardol 44 Child Participation in Post-divorce or -separation Dispute Resolution 895 Astrid Martalas

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45 Juvenile Justice and Adolescence: A Comparison within the Kingdom of the Netherlands 913 Annemarie Marchena-Slot 46 Juvenile Justice in the Republic of Kazakhstan: An Overview 928 Anara Zholdybayeva



Foreword The un Convention on the Rights of the Child (crc) is a Magna Carta for the protection and promotion of the rights of children. Its global importance has been acknowledged by various measures, including its quick and nearly universal ratification, which currently stands at 196 States Parties. The milestone of the crc’s twenty-fifth anniversary in 2014 was a significant event. It was significant not only for celebrating the achievements brought about by this instrument, but also for challenging us all to reflect further in our collective efforts to create a world fit for all children. This book, based on papers presented at the conference ‘25 Years crc’ hosted by the Department of Child Law at Leiden University at the time of the anniversary celebration, marks an important contribution to the growing body of specialised scientific literature on children’s rights. The collaboration between academia, practitioners, ngos and other specialists at the conference illustrates the reach and impact of the Convention on a broad church. This serves to confirm the interdisciplinary nature of the children’s rights implementation project, and marks a seminal point at which stock can be taken and areas worthy of future consideration discussed. The Committee on the Rights of the Child, which enjoyed representation at the conference, as well as other stakeholders working with and for children, will benefit from the diverse reflections contained in this collection. Benyam Dawit Mezmur Chairperson un Committee on the Rights of the Child



Acknowledgements This book includes papers and keynote lectures presented at the international conference ‘25 Years crc’ hosted by Leiden Law School from 17–19 November 2014 in Leiden, the Netherlands. The conference attracted more than 300 scholars, professionals and doctoral students from around the world, and formed part of the Children’s Rights Week organised in Leiden together with the City of Leiden, unicef the Netherlands, the Dutch Collective of Children’s Rights ngo’s (‘Kinderrechtencollectief’) and Leiden University. We would like to express our sincere gratitude to everyone who contributed to the development of this book in one way or the other. First of all, we wish to thank the authors for their invaluable contributions, their professional, constructive attitude towards drafting and redrafting their chapters, and their patience. When the papers for this book started to arrive in the conference’s aftermath, we understood the magnitude of the project. We also realised that the envisaged (double-blind) peer review process would not only take time but require the assistance of numerous colleagues. Consequently, the book has come about through the efforts of a great many people, and we are grateful indeed for support we received from our colleagues across the globe throughout the review process and beyond. Thanks both to the authors and the critical and constructive (blind) feedback by colleagues, we believe we have created a book that includes scientific work that meets the standards of international scholarship and professional publication and which, taken as a whole, provides a unique portrait of applied research, advocacy initiatives and various projects on the frontiers of children’s rights. Furthermore, we would like to thank André Wiesner of Advocacy Aid (South Africa) for his excellent role as coordinator of this book project and for editing the book itself. He has done an amazing job, both for us editors as well as for the contributors. Without his dedication we would not have been able to bring to the book to its realisation. We also thank Lindy Melman and Bea Timmer from Brill | Nijhoff for their trust in this project. Last but by no means least, we express our deep gratitude to the E.M. Meijers Research Institute and Graduate School at Leiden Law School for providing human and financial resources essential for arranging the international conference as well as producing this book. We conclude with the hope that the book will be used by many and contribute to the development and implementation of children’s rights across the

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globe, serving as a source of reference and inspiration for academics, students and practitioners. Ton Liefaard and Julia Sloth-Nielsen Leiden, April 2016 This book has been developed in cooperation with the E.M. Meijers Research Institute and Graduate School at Leiden Law School.



List of Contributors

About the Editors

Ton Liefaard holds the unicef Chair in Children’s Rights at Leiden Law School, Leiden University, the Netherlands. He is the programme director of the Master’s Programme (llm) Advanced Studies in International Children’s Rights and coordinates the Leiden Summer School on International Children’s Rights. He teaches and publishes widely on issues related to children’s rights, juvenile justice, child-friendly justice, child protection, alternative care and violence against children. Liefaard is a honorary juvenile judge at the District Court of Amsterdam, and regularly works as a consultant for international organisations, including un agencies, the Council of Europe and the European Union. Julia Sloth-Nielsen holds the Chair of Children’s Rights in the Developing World at Leiden Law School, Leiden University, the Netherlands, and is a professor at the Faculty of Law, University of the Western Cape, South Africa. She served a term as a member of the African Committee of Experts on the Rights and Welfare of the Child from 2011–2016, and has published extensively on various aspects of children’s rights.

Contributing Authors

Claire Achmad is a doctoral candidate with the Department of Child Law, School of Law, Leiden University, and a Barrister and Solicitor of the High Court of New ­Zealand. Her expertise is in international child law, human rights and public international law. She has worked as a lawyer, adviser and consultant in government, international and non-governmental organisations in New Zealand and Europe. Kirsten Anderson is the Legal Research and Policy Manager of Coram International at the Children’s Legal Centre, a research institution and consultancy specialising in a wide range of issues relating to children’s rights. Kirsten is an experienced

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socio-legal researcher with particular expertise in juvenile justice and child protection. Kara Apland is a Senior Researcher at Coram International at the Children’s Legal Centre, with expertise in social and legal research, including both qualitative and quantitative methods. Kara has experience conducting applied research on a range of issues relating to child rights and the rights of migrants and asylum seekers. She is particularly interested in rights protection, access to justice, and the politics of law and legal frameworks. Elisabeth Backe-Hansen is a professor at Norwegian Social Research, which is part of Oslo and Akershus University College. She is a psychologist by profession. She has published extensively within the fields of child protection, child poverty, and children and youth in general. A particular interest has been in children’s participation in research and the ethical issues relating to this. Paula R. Ballesteros is an independent consultant at the Ministry of Justice, Brazil. A PhD candidate in State, Law and Constitution at Universidade de Brasília, she holds a Master’s degree in Public Administration and Government and Bachelor’s degrees in Law and in Social Science. Her research is focused on democracy, the public security system, the penal judicial system and human rights. Daan Beltman llm, is a legal scholar working as a researcher at the multidisciplinary Study Centre for Children, Migration and Law of the University of Groningen Faculty of Social and Behavioural Sciences. He mainly conducts research on children’s rights in migration law and the quality of decision-making. His field of expertise includes public (international) law, in particular children’s and human rights law, administrative law and migration law. Nigel Cantwell is a Geneva-based consultant on child protection policies with 35 years’ experience of working on the human rights of children, notably with international ngos and unicef. It was his special focus on safeguarding children’s rights in alternative care and in intercountry adoption that led him to question the importance given to ‘the best interests of the child’ in a human rights context.

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Goos Cardol is a legal adviser for the Staff Organisation of the Dutch Child Protection Board in The Hague and researcher on the youth domain at Zuyd University of Applied Sciences in Maastricht. He is a member of the Supervisory Board of a youth care organisation and chairman of the working group youth of the Dutch Section of the International Commission of Jurists. He is also a member of the Board of the Dutch Society of Family Law. Florence Charrière is currently a project coordinator at the ngo Voix Libres in Geneva, working to eradicate child labour in the mines in Bolivia. She was a consultant for the unicef Corporate Social Responsibility Team at the time of the 25 Years crc conference. She studied international relations and has a Master’s degree in children’s rights from the Kurt Bösch University Institute, Switzerland. Sumaira Chowdhury currently holds the position of Partnerships Manager in unicef’s Global Philanthropy team in Geneva. She has worked with unicef for over 12 years in Mozambique, India, and Kenya. She started her career as a management consultant with A.T. Kearney in New York. She holds a ba from Wellesley College and a mpaid from the Kennedy School of Government, Harvard University. She is a national of Bangladesh. Jenneke Christiaens is a professor in juvenile justice and youth criminology at the Vrije Universiteit Brussel. She is Chair of the Crime & Society Research Group (cris). Her research interests concern juvenile justice practices, youth delinquency as well as (youth) crime, public space and the city. Alison Cleland is a Senior Lecturer at the University of Auckland. Alison is passionate about the rights of children and young people. In legal practice in Scotland, she represented young clients under 16. Her research in New Zealand has focused on youth justice. She is the co-author of Youth Justice in Aotearoa New Zealand (LexisNexis 2014). Tara M. Collins is Assistant Professor in the School of Child & Youth Care at Ryerson University in Toronto, Canada. She has a PhD from the University of London and has

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worked on international human rights since 1996. Her professional experience includes work for universities in Canada and Ireland, Canadian federal government and Parliament, and a national non-governmental organisation. Her research interests include child and youth participation, child protection, monitoring, and rights-based approaches. Anna Copeland is a senior lecturer at Murdoch University in Western Australia. She is the Director of Clinical Legal Programs which means she is both a practitioner and a teacher. Her legal practice is in the area of human rights including refugee and migration law; children’s rights; economic, social and cultural rights such as housing and welfare. She has published in the areas of human rights (specifically children’s rights) and legal education. Meda Couzens is a Honorary Research Fellow with the School of Law, University of KwaZuluNatal, Durban, South Africa, and a PhD candidate with the Leiden Law School. She teaches and researches in the area of child law, child rights, human rights and constitutional law. Esther de Graaf is a PhD student in the Department of Criminology at the Vrije Universiteit Brussel. Her chapter included here provides an overview of her doctoral research. Corinne Dettmeijer-Vermeulen is the Dutch Rapporteur on Trafficking in Human Beings and Sexual Violence against Children. She was appointed in 2006. She has for many years been a judge at the district court of The Hague, and from 1995 to 2014 served as vice president of the court. She has been a member of several (international) professional bodies and advisory committees in the field of juvenile law. Sietske Dijkstra PhD, was a professor (lector) in domestic violence and inter-agency cooperation from 2007 until November 2014 at Avans University of Applied Sciences in the Netherlands. She is currently affiliated to the hu University of Applied Sciences in Utrecht, Social Studies. In 1998 she founded a consultancy, Bureau Dijkstra, dealing with issues of relational and social safety. See www.sietske -dijkstra.com.

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Els Dumortier is a professor in juvenile justice and youth criminology at the Vrije Universiteit Brussel. Her research focuses on questions concerning youth justice (practices) and children’s rights in contemporary times and the past (twentieth century). Kjersti J. Ø. Fløtten holds a Norwegian Candidata Magisterii degree from Adger University College in 2004 and a Master of Philosophy in Peace and Conflict Transformation from the University of Tromsø in 2007. Since 2007 Kjersti has worked in health promotion at Akershus University Hospital, where children’s rights in hospital has been one of her main projects. She coordinates the Norwegian network of health promoting hospitals and health services. Ana Isabel F. Guerreiro holds a Bachelor of Arts in International Relations awarded by Keele University (uk) in 2003 and a Master of Arts in Human Rights and Conflict Management awarded by the Scuola Superiore Sant’Anna (Italy) in 2007. Ana works has an independent child rights consultant. Her main projects include working with the World Health Organization Regional Office for Europe, for which she has developed tools and processes to use the Convention on the Rights of the Child as a framework for improving quality of care for children and adolescents. Laurene Graziani holds a PhD in Law (Aix-Marseille University, 2015) under the supervision of Professor Kerbrat (Sorbonne) and Professor Hanson (Geneva) and an interdisciplinary Master of Advanced Studies in Children’s Rights (iukb/Fribourg University, 2010). In parallel with her academic work, she has undertaken several projects in the field of children’s rights advocacy and education, child protection and participation. Marieke Hopman is a PhD student at the intervict Institute of Tilburg University. Her interdisciplinary research project, titled ‘Looking at Law through Children’s Eyes’, is the first PhD research project in the Netherlands that is being funded through crowdfunding. For more information on this project, including a vlog, see www.childrensrightsresearch.com. Mayke Huijbregts currently holds a post as Chief: Child Protection with unicef in Mozambique. She has worked with unicef over 16 years in Malawi, Zambia, Zimbabwe and

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former Yugoslav Republic (fYR) Macedonia. She started her career with the European Commission in Brussels and thereafter worked with Human Rights Watch and osce. As a Dutch citizen, she holds a llm in Law from Amsterdam University with a specialisation in international law and human rights. Margrite Kalverboer PhD, llm, is a professor by appointment, holding a special chair on Children, Pedagogics and Migration Law. She works at the Department of Youth Care and at the multidisciplinary Study Centre for Children, Migration and Law of the University of Groningen Faculty of Social and Behavioural Sciences. Her research topics concern separated/unaccompanied asylum-seeking children, youth care and children’s rights. Akemi Kamimura is an independent consultant in human rights and holds a Master’s degree in Human Rights from the University of Sao Paulo (usp, Brazil) and a Specialisation in ‘Human Rights and Women: Theory and Practice’ from the University of Chile. She works as voluntary assistant in the Human Rights and Constitutional Law Course at the Catholic University of Sao Paulo (puc/sp). Ivana Milas Klarić is an assistant professor in family law at the Faculty of Law in Zagreb. Her major teaching and research interests are in Family Law and the Human Rights of Persons with Disabilities. Currently she works as an Ombudsperson for Children. She is the author of several published books and articles. Karin Kloosterboer is a lawyer – educated in Amsterdam and Exeter – and children’s rights expert at unicef Netherlands. She has been active in the field of advocacy and research on children’s rights since 1986 and has published widely on children’s rights, including children on the move and children in the Caribbean part of the Kingdom of the Netherlands. She has also initiated several practical projects to improve the situation of children in the Netherlands. Slađana Aras Kramar PhD, is an assistant professor in civil procedure at the Faculty of Law in Zagreb. Her major teaching and research interests are in Civil Procedure, European Civil Procedure, Family Procedure, Commercial Procedure, Legal Aid, Arbitration Law, and Alternative Dispute Resolution. She is engaged in the Legal Clinic of the Zagreb Faculty of Law. She is author of several published books and articles.

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Sara Lembrechts is a staff member at the Children’s Rights Knowledge Centre (KeKi) in Ghent, Belgium. She has an ma in Childhood Studies & Children’s Rights from the Free University of Berlin and an llm in International Laws from Maastricht University. At KeKi, Sara deals with policy advice and thematic research on various children’s rights issues. She also manages the Children’s Rights Database and co-organises the International Course on Children’s Rights. Annemarie Marchena-Slot is Associate Professor in Criminal Law at University of Curaçao dr. Moises da Costa Gomez. Her research is focused on juvenile justice and she publishes nationally and internationally on this topic. Astrid Martalas is a counselling psychologist in private practice. She practices mainly in the field of post-divorce dispute resolution. She is a mediator and facilitator and is accredited with famac. She has served two terms as co-chairman of famac. Astrid is a member of a national taskforce establishing guidelines for parenting coordination in South Africa. Alice Kooij Martinez has a llm from the University of Maastricht and a master’s degree in Human Rights and Democratisation from the European Inter-University Centre for Human Rights and Democratisation. Since 2008 she has been working on children’s rights issues at national and international level, with a particular focus on policy influencing by youngsters. Vitit Muntarbhorn is Professor Emeritus of Law at Chulalongkorn University in Bangkok. He has served as un Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, un Special Rapporteur on the human rights situation in North Korea, and Chairperson of the 2011 un Commission of Inquiry on the Ivory Coast. He currently serves as a Commissioner of the un Commission of Inquiry on Syria and a member of the ilo Committee of Experts on Recommendations and Conventions. He has published widely on human rights, child rights and development issues. He helps a range of international agencies, government ministries and civil society organisations, and received the 2004 unesco Human Rights Education Prize.

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Rita Nunes ma, is a Researcher at the Constitutional and Administrative Law Department at Freie Universität Berlin. She has been the Coordinator of the European Network of Masters in Children’s Rights (enmcr) since 2012 and the editor in charge of the CRnews newsletter since 2011. Her main research interests are related to the application of international human rights, particularly children’s rights. Zsuzsanna Nyitray is a PhD candidate in international children’s rights law at Eötvös Loránd University Budapest (elte), Faculty of Law. She concluded her law degree at elte and holds an llm in International Law from the University of Edinburgh. She is currently an Aryeh Neier Fellow with the Open Society Justice Initiative and is working on equality and discrimination issues. Katharina Eva Ó Cathaoir is a PhD Fellow at the Centre for Welfare and eu Market Integration (Welma), Faculty of Law, University of Copenhagen. She is also a member of an interdisciplinary research group, Governing Obesity. Katharina holds a bcl in Law and Irish (University College Cork) and an llm in International and Comparative Law (Trinity College Dublin). Her primary research interests lie in children’s rights and the right to health. Godfrey O. Odongo is an advisor with Wellspring Advisors, a philanthropic donor advisory firm based in New York. He has previously served as a regional expert for Amnesty International and Save the Children Sweden. An Advocate of the High Court of Kenya, he holds the degrees lld (University of the Western Cape), llm (University of Pretoria), llb (Moi University) and a postgraduate diploma in law from the Kenya School of Law. Mona Paré is Associate Professor at the University of Ottawa, Faculty of Law, Civil Law Section. She is co-founder of the Interdisciplinary Research Laboratory on the Rights of the Child. Her research covers different areas of children’s rights in international and domestic contexts, with a special interest in education, discrimination and equality, disability, and child participation. Miad Ranjbar is a PhD student in the Department of Sociology at McMaster University. His research interests include childhood development and education, school

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safety and child outcomes, and sociological analyses of violence among children and youth. Stephanie Rap PhD, is a senior researcher and lecturer at the Department of Child Law, Leiden University Law School. She holds Master’s degrees in Pedagogical Sciences and Criminology. In 2013 she defended her doctoral dissertation titled ‘The participation of juvenile defendants in the youth court’ at Utrecht University. She has published and presented extensively on juvenile justice, children’s rights and child participation. Peter Rodrigues has been Professor of Immigration Law and Chairman of the Institute of Immigration Law at the University of Leiden since 2009. From 2001 to 2010 he was Research Director at the Anne Frank House (Amsterdam) and co-editor of the Monitor Racism and Extremism. He is a member of the Dutch Standing Committee of experts on international immigration, refugee and criminal law (Meijers Committee). Vanessa Orban Aragão Santos is research manager at Move Social. She holds a Bachelor’s degree in Social Science from São Paulo University (usp) and a Master’s in Urban Sociology and Violence from the University of Campinas (Unicamp), Brazil. Her research is focused on the areas of violence, human rights, child rights and evaluation research methodology. Move Social supported her travel to the 25 Years crc conference, where a version of this chapter was presented. Noah M.O. Sanganyi has been a child protection specialist in the Ministry of Labour and East Africa Community Affairs for over 27 years. He holds a ba in Social Work (uon) and an ma in Sociology (uon), and is currently pursuing a PhD in Sociology at Mount Kenya University. He is a member of the East Africa Advisory Board in the Regional Psychosocial Support Initiative (repssi), Tanzania. He is also Alternate Board Member of the Kenya National Commission for unesco (knatcom). Vanessa Sedletzki is an international human rights and child rights expert. The founder of Rights On, she advises governments, un and European organisations, and ngos on human rights, protection, social inclusion, and law and policy reform. She previously worked with unicef at their New York headquarters and at

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the Innocenti research centre. She has authored and co-authored a number of publications, including Championing Children’s Rights: A Global Study of Independent Human Rights Institutions for Children (2012). Jill Stein is a researcher in children’s rights and obtained her Master’s in Child Law at Leiden Law School, the Netherlands. She was a junior lecturer in children’s rights at Leiden Law School and has been involved in several children’s rights research projects, both in the Netherlands and abroad. Recently she worked as a legal researcher at the University of the Western Cape, South Africa, where she conducted research on the protection of unaccompanied migrant children in Zambia and South Africa. Anna D. Tomasi holds an llm in International Human Rights Law (University of York), a Postgraduate Certificate in Child Rights (Universidad de Buenos Aires), and an llb in European and Transnational Law (Università degli Studi di Trento). Since 2012 she has been Advocacy Coordinator for Defence for Children (dci), International Secretariat (Geneva, Switzerland), with a focus on a campaign calling for a Global Study on Children Deprived of Liberty (officially launched in March 2014). Annabel Trapp is a freelance child rights consultant based in the Netherlands. During her career she has supported the application of child rights-based approaches in a variety of organisations. In her six years as Senior Child Rights Advisor at War Child she initiated, developed and managed the operationalisation of child rights in the organisation’s strategies, policies and processes as well as programming practice in 11 contexts affected by armed conflict. Margaret Tuite has been the European Commission coordinator for rights of the child since November 2011 in the unit responsible for fundamental rights and the rights of the child of the Directorate-General Justice and Consumers. She and her team ensure coordination within the Commission and also with external stakeholders. She has worked for the European Commission for 31 years, 15 of them in the areas of justice and home affairs. In her previous post as deputy head of unit for criminal law, she was responsible for European e-Justice, contributing to the improvement of access to justice and cross-border judicial c­ ooperation. Twitter: @MargaretTuite1.

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Pia van den Boom is programme manager at ics, an international ngo that aims to strengthen the socioeconomic capabilities of vulnerable families in rural areas of East Africa. With a background in developmental psychology and child rights, Pia is co-developer of the ics Skillful Parenting programme which aims to provide quality parenting support for all parents to improve the quality of their and their children’s lives. Benoit van Keirsbilck is the director of the Belgian section of Defence for Children International (dci), which he helped to found about 25 years ago. This ngo acts as a watchdog over the implementation of the un Convention on the Rights of the Child. Van Keirsbilck is also President of dci’s International Executive Council, was the director of the Children Law Service of Brussels, and is co-director of the Interdisciplinary Centre of the Rights of the Child (cide). In addition, he is the chief editor of the Belgian edition of the Journal of Children’s Law. Hans van Loon was born in Utrecht in 1948. He studied in Utrecht, Leyden and Geneva, practiced law before the Supreme Court of the Netherlands, and joined the Hague Conference in 1978. He initiated the Hague Adoption Convention, and steered the organisation through a period of global expansion, opening membership to the eu, and ensuring global effectiveness of its work, including through regional offices in Buenos Aires and Hong Kong. Carla van Os MSc, llm, is a PhD candidate at the multidisciplinary Study Centre for Children, Migration and Law of the University of Groningen. Her PhD research focuses on the development of a scientifically based method to decide as early as possible how the interests of minor refugees can be best considered during decision-making in asylum procedures. She studied Orthopedagogics, Journalism and Law. Philip E. Veerman is a forensic psychologist and independent expert for the Dutch courts. He led a Nidos project for inter-agency cooperation against child trafficking. He was President of Defence for Children International (dci) and has been the Executive Director of the Israeli Section of dci for 17 years. He has been a member of the Steering Committee of the Coalition against the Use of Child Soldiers in

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London and a board member of the Beyond Borders Foundation. He started the International Journal of Children’s Rights. Yvonne Vissing PhD, is Professor of Sociology and Founding Director of the Center for Childhood and Youth Studies at Salem State University in Massachusetts usa. She is also Policy Chair for the un Convention on the Rights of the Child. Author of seven books, she is a former National Institute of Mental Health Research Fellow and Whiting Foundation Fellow. Annelotte Walsh recently completed her PhD in the Faculty of Law at Hong Kong University, focusing on the rights of children in the context of international criminal justice. She is currently Honorary Lecturer in the Department of Politics and Public Administration at Hong Kong University. She previously worked for unicef Australia and has undertaken practical placements with the United Nations Criminal Tribunals in Tanzania and The Hague. Jane Williams is an associate professor at the College of Law and Criminology, Swansea University, and the co-founder of the Wales Observatory on Human Rights of Children and Young People. The Observatory is dedicated to research, innovation and engagement conducive to the realisation of human rights for children and young people. Williams’s publications include The uncrc in Wales (University of Wales Press, 2013) and, with Antonella Invernizzi, The Human Rights of Children, From Visions to Implementation (Ashgate, 2011). Elizabeth Yarrow is a Senior Researcher at Coram International at the Children’s Legal Centre. She specialises in conducting applied social and legal research on a range of thematic issues, with particular interest in the intersections of childhood, gender, violence, and sexual and reproductive rights. Liz is well versed in a range of mixed methods and combined social research techniques, including qualitative and statistical analysis. Daniëlle Zevulun MSc, llm, is a PhD Candidate at the multidisciplinary Study Centre for Children, Migration and Law of the University of Groningen. Her PhD research focuses on determining the best interests of the child, in particular of migrant­

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children who have returned to their countries of origin. She holds an ma degree in Cultural Anthropology from Utrecht University and an ma degree in Public International Law from the University of Amsterdam. Anara Zholdybayeva is a lawyer and research associate at the Institute of Legislation of the Republic of Kazakhstan. From October 2014 to March 2015 she was an Intern of the School of Law, University of Reading, United Kingdom. Elianne Zijlstra PhD, is a behavioural scientist working at the multidisciplinary Study Centre for Children, Migration and Law of the University of Groningen Faculty of Social and Behavioural Sciences. She conducts behavioural scientific research on children in decision-making procedures in migration law. Her research topics are the development and quality of the child-rearing environment of children in migration procedures and the assessment and determination of the best interests of the child. Mirela Župan is an associate professor at the Faculty of Law of the J.J. Strossmayer University of Osijek. Her main field of professional occupation is private international law, particularly international family law (both universal and European), in addition to European human rights protection. She lectures on undergraduate, Master’s and PhD courses. Mirela is a Max Planck Society scholar and researcher at mpi Hamburg, and a researcher on several eu-funded projects. She is also a member of the European Commission expert group for revision of Brussels ii bis (2201/2003) regulation.

chapter 1

25 Years crc: Reflecting on Successes, Failures and the Future Ton Liefaard and Julia Sloth-Nielsen 1 Introduction November 2014 marked the twenty-fifth anniversary of the adoption of the un Convention on the Rights of the Child (crc). It is the most extensively ratified human rights treaty in the world and, given the large number of signatory states that have acceded to it, it is also the one to have entered into force most rapidly: when Somalia ratified the crc in October 2015, it became the 196th State Party to do so, leaving the United States as the only un Member State which has not endorsed the crc.1 With the adoption of the crc, children are seen as individual rights-holders,­ in that they are entitled to human rights and fundamental freedoms as any other human being is. At the same time, they have special entitlements and unique rights that attest to their differences to adults, including their parents or legal guardians. As a human rights treaty for children, the crc has made a significant impact in the first 25 years of its existence.2 That impact manifests itself in domestic law reform;3 national and regional jurisprudence;4 additional standard-setting at the un and regional level;5 policy development at the

1 The us is party to the first two Optional Protocols to the crc and has signed the crc itself, although ratification seems unlikely in the short term. See also Vissing in Chapter 7 of this book. 2 Arts K ‘Twenty-Five Years of the United Nations Convention on the Rights of the Child: Achievements and Challenges’ 61(3) Netherlands International Law Review (2014) 267–303. 3 Sloth-Nielsen J ‘Modern African childhood: Does law matter?’ in Freeman M (ed) Law and Childhood Studies (Current Legal Issues, Volume 14) (2012); unicef Protecting the World’s Children: Impact of the Convention on the Rights of the Child in Diverse Legal Systems (2007) and Law Reform and Implementation of the Convention on the Rights of the Child (2007). 4 For example, see Liefaard T & Doek JE (eds) Litigating the Rights of the Child: The un Convention on the Rights of the Child in Domestic and International Jurisprudence (2015). 5 For example, see the 1990 un Rules for the Protection of Juveniles Deprived of their Liberty; the 2009 Guidelines on Children in Alternative Care; and the 2010 Council of Europe Guidelines on child-friendly justice.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_002

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national and regional level;6 institutional development, including the development of national human rights institutions (nhris);7 and the child rights influence on the international development agenda, notably the Sustainable Development Goals (adopted after the conference that formed the basis of this book). The crc has served as a catalyst for additional standard-setting targeting children at the international (un), regional (Europe, Americas, Africa and Asia) and domestic level; it has reinforced the value of the existing legal frameworks of general human rights law and public international law, as well as shaped private international law concerning the legal position of children.8 In addition, the crc has generated international, regional and domestic case law in which specific children’s rights standards were developed, general human rights standards were interpreted in a child-specific manner, and national legislation was supplemented or interpreted in accordance with international children’s rights law. Both at a national and international level, courts of law and other human rights institutions are faced increasingly with deciding cases concerning children and with addressing their independent rights in different areas of law, including civil, criminal and administrative law. Yet, for all that, much remains to be achieved. Child poverty is still endemic in large swathes of the world. The extent of the violence against children that has surfaced internationally is a matter of great concern. Children also face challenges and risks in migration, sometimes moving vast distances without adult care and support. The ongoing use of deprivation of liberty of children – the extent of which has yet to be revealed – seems intractable even in an era of commitment to children’s rights and their best interests. While access to education has improved dramatically, deep concerns about its quality and the usefulness of the curriculum in the 21st century have been voiced. Thousands of children still die every day from preventable diseases. Observations like these are well known; it just as well known that – with the necessary financial resources and political commitment – the solutions are not hard to find. Hence, the positive impact of the crc and related international and regional standards, combined with a lack of implementation to ensure that these obligations are met, leads to a paradoxical conclusion: there is cause both to celebrate the crc’s success as well as lament its failure to safeguard the rights 6 For example, see Iusmen I & Stalford H (eds) The eu as a Children’s Rights Actor: Law, Policy and Structural Dimensions (2016). 7 unicef Championing Children’s Rights: A Global Study of Independent Human Rights Institutions for Children (2013); see also Sedletzki in Chapter 11. 8 See Van Loon in Chapter 4.

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of all children regardless of where they live or find themselves. Indeed, one could even argue that it is the not the crc’s success but its failure to promote and protect the rights of children which is the dominant motif, a failure all the more pronounced seeing as the treaty is almost universally endorsed. At the same time, the successfulness of the crc at the international, regional and domestic level should not be measured only in terms of implementation. Much of the significance of children’s rights stems from the fact that they entail recognition that children ought to be seen as rights-holders in the first place. As Freeman9 and others have argued eloquently, there are various reasons why it is important to take children’s rights seriously. After all, the Declaration on the Rights of the Child of 1924 emphasised that ‘Mankind owes to the Child the best it has to give’, asserting that deliverables are based on society’s obligations to children rather than being derived from their essential status as human beings. Children’s agency, and the importance of hearing their views, came to the fore only in the crc some half a century later, illustrating that the history of children’s rights as we now conceptualise them is not a long one. The recognition of the rights of the child contributes to children’s visibility both in legal and political systems, and at the domestic level and beyond. In addition, the children’s rights framework has made significant contributions to the development and understanding of children’s legal status. This includes the clarification of a number of fundamental questions. For instance, to what extent must children participate in decision-making that affects them (art. 12 crc; see also art. 9(2) crc)? What is the relationship between children and their parents or (extended) family as far as the exercise of their children’s rights is concerned (art. 5 crc; see also art. 14(2) crc)? And how could children vindicate their rights or remedy unlawful or arbitrary treatment (see also the 3rd Optional Protocol to the crc)? Moreover, the crc has codified that parents have the primary responsibility for their child’s upbringing (art. 18(1) crc) and that the role of the state aims primarily at supporting parents and families (art. 18(2) and art. 3(2) crc). Limiting parental authority or infringing on children’s and parents’ private and family life could be justified on the basis of the rights and best interests of the child – including, for example, the right to be protected against violence – but can be used only as measure of last resort and only while taking into account legal safeguards for parents as well as the child, including the right to maintain contact after separation (art. 9(3) crc; see also the case law of the European Court of Human Rights under art. 8 echr). 9 Freeman M ‘Why it remains important to take children’s rights seriously’ International Journal of Children’s Rights (2007) 5–23.

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Thus, the question of whether the crc has been successful is a matter of perspective and ought then to be answered on the basis of a range of perspectives. By the same token, one should move beyond this question and acknowledge that international children’s rights law is a relatively new field of law. It can be argued that the crc is still in its infancy and that it would take perhaps another 10, even another 25, years before one can truly judge its added value both to theory and practice. In this regard, one of the critical challenges is to monitor the crc’s progress carefully, not only in terms of its implementation but its actual impact on the lives of children, and to combine this with a better understanding of the crc’s conceptual relevance to the way in which children’s legal capacity is understood. It therefore seems both justified and important to pause for a moment, take stock after the first quarter of a century of the crc, and bring together the contributions of experts, academic and professional, from around the world in order to share ideas on the emerging themes of the 21st century and on the research agenda for the years to come. 2

Content and Structure of the Book

This book offers a selection of papers presented at the international conference ‘25 Years crc’ convened by Leiden Law School on 17–19 November 2014. The aim of the book is similar to that of the conference: to take stock of how international children’s rights, as set out in the crc, find their way into the lives of children at the local level, and to explore the frontiers of children’s rights and related research for the coming 25 years and beyond. For children’s rights to be effective, it is crucial that they take root locally through legislation and policy, a process which is stimulated by national, regional and international enforcement mechanisms. Implementation is not well served, however, by the absence of a critical perspective on international children’s rights law and its meaning for children’s rights in practice.10 This book provides a variety of perspectives on children’s rights and their implementation. Among them are legal perspectives, including those concerned with the interaction between different legal systems; ngo perspectives on shaping agendas, implementation strategies and means of including children;

10

See also Vandenhole W et al. (eds) Routledge International Handbook of Children’s Rights Studies (2015).

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and scholarly perspectives on how children’s rights could be embedded in national legal systems and practices by using legal and interdisciplinary research, knowledge exchange and case-study analysis to enable a better understanding of how children’s rights are implemented in practice. The book consists of four parts, which are briefly outlined below. 3

Part 1: Reflections on Children’s Rights from Different Perspectives

Part 1 considers fundamental children’s rights issues and the crc’s role as the international human rights instrument established to safeguard those rights. Three of the conference’s keynote addresses – by Muntarbhorn (Chapter 2), Van Loon (Chapter 3) and Dettmeijer-Vermeulen (Chapter 4) – are included here and accompanied by a critical and thought-provoking essay by Cantwell (Chapter 5) on the best interests of the child, recognised by the crc Committee as one of the Convention’s four general principles. Part 1 concludes with Vissing’s account of children’s rights in the United States (Chapter 6), the sole outstanding State Party to the crc and one not proceeding to ratification with any rapidity. 4

Part 2: Towards more Effective Implementation

Part 2 presents a diversity of scholarly papers analysing the lessons learnt from 25 years of crc implementation and adopting a variety of approaches to the question of how to make it more effective in the future. Couzens (Chapter 7), Graziani (Chapter 8), Williams (Chapter 9) and Sedletzki (Chapter 10) provide intriguing insights into research dealing with, respectively, the use of the crc Committee’s recommendations by national courts; children’s access to justice as a means to enhance children’s rights protection; the role of professions in implementing the crc; and the role of national human rights institutions such as children’s ombudspersons or commissioners, a theme Sedletzki also examines in relation to formal and social accountability for the implementation of children’s rights. Thereafter, five chapters touch upon the issue of the added value of the crc and related international and regional instruments in respect of jurisprudence developed at the domestic and regional level. Odongo (Chapter 11) considers the role of international law in the judicial interpretation of new children’s law in Africa, with a focus on Kenya by way of example. Župan

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(Chapter 12) addresses the use of the principle of the best interests of the child in the system of cross-border judicial protection of children, while Nyitray (Chapter 13) focuses on the jurisprudence of the European Court of Human Rights ­concerning the segregation of Roma schoolchildren. These three chapters provide an interesting picture of the impact, actual or potential, of children’s rights on domestic legislation, national and international legal frameworks meant to protect children’s rights in specific matters and in (inter)national jurisprudence. That impact, however, can be diverse in nature and is not always consistent. For instance, Župan criticises the inconsistent use of the best-interests principle in cross-border matters, and calls for ‘a more holistic approach to decisions relating to children in cross-border protection’, one that ‘involves the proactive power of interpretation of the adjudicatory authority’.11 The authors make recommendations on how to enhance the inclusion of children’s rights in a consistent manner, and although the chapters hone in on one specific country or children’s rights issue, their arguments and analyses have wider relevance too. The same is true of Kramar and Klarić’s account of the procedural rights of the child in family justice systems in some South-East European countries (Chapter 14). While the chapter focuses on a particular region, the observations contribute to a better understanding of the implementation of children’s procedural rights and the significance of domestic legislation empowering children’s access to court and administrative proceedings.12 Part 2 continues with a chapter by Hopman (Chapter 15) providing a philosophical perspective on children as rights-bearers and the question of the universality of children’s rights. This is followed by a number of chapters examining specific children’s rights issues, including juvenile justice (Rap, Chapter 16, and Cleland, Chapter 17); migration (Copeland, Chapter 18, and Anderson, Apland and Yarrow, Chapter 19); statelessness of children at birth (Rodrigues and Stein, Chapter 20); internally displaced children (Nunes, Chapter 21); and child trafficking (Veerman, Chapter 22). These chapters not only illustrate the wide ambit of the crc but also underline the idea that children’s rights implementation requires an approach which is specifically targeted at the micro-systems in which children find themselves. The chapters indicate, too, that as the field of children’s rights matures, researchers and academics need greater specialisation in order to address

11 12

See Chapter 12, p. 186. See also Graziani in Chapter 8.

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either particularly thorny areas of implementation, or particularly vulnerable children. In this regard, Rap underscores the importance of researched-based, interdisciplinary methods for enhancing children’s participation, while Nunes points out that implementation requires approaching the crc as part of a broad international framework of instruments addressing children, a framework that includes the Guiding Principles of Internally Displaced Persons. In their analysis of the crc Committee’s concluding observations and recommendations, Rodrigues and Stein show that stateless children receive not nearly the attention they require, while Copeland, Anderson, Apland and Yarrow and Veerman explain what should be done to implement children’s rights holistically in the areas of migration and trafficking of human beings. Finally, Cleland offers insight into children’s participation as part of New Zealand’s hailed restorative justice system, confirming again that this model has rightly been an inspiration to many other juvenile justice systems around the world. 5

Part 3: Frontiers of Children’s Rights Research

Part 3 consists of chapters, mostly scholarly, breaking new ground on issues which are very much at the frontiers of children’s rights research. Margaret Tuite (Chapter 23) kicks off with an overview of the European Union’s activities in research and data collection on children’s rights. Despite the impressive range of this overview, she is critical of the ‘relative scarcity of comparative data and research that documents how the rights of the child are effectively implemented across the eu’.13 Tuite concludes by identifying key areas of research and analysis for the medium and long term, and calls for approaches that are more coordinated. Although the chapter focuses on Europe, it provides a wider understanding of the role that various forms of longitudinal, participatory and qualitative research can play in furthering the realisation of children’s rights. In a similar vein, Lembrechts (Chapter 24) explores the question how to connect two different research areas – children’s rights and knowledge management – and builds on materials and insights that were gathered from ­activities of the Flemish Children’s Rights Knowledge Centre. In her view, 13

See Chapter 23, p. 386.

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c­ onnecting these fields can offer ‘refreshing perspective on conventional ways of understanding children’s rights’.14 The four chapters thereafter break new ground by focusing on emerging themes, or themes that fall outside the ‘classic’ areas of children’s rights research: international commercial surrogacy; children and the digital world; food marketing and child-friendly justice in international criminal justice proceedings. Achmad (Chapter 25) proclaims the added value of the inclusion of children’s rights in addressing international commercial surrogacy, an issue cutting across a number of human rights concerns, including global migration, social work, bioethics, science and technology. Paré, Collins and Ranjbar (Chapter 26) focus on bullying and cyberbullying research and advocate for the inclusion of an international children’s rights perspective. This is followed by a paper by ó Cathaoir (Chapter 27) on food marketing and children’s rights. She analyses the approach of the crc Committee, the Special Rapporteurs on the Right to Food and Health, the who and civil society on food marketing, with a view to establishing a children’s rights approach to the marketing of food, particularly of food with a high fat, salt or sugar content. Then, in Chapter 28, Walsh examines child-friendly justice in international criminal justice proceedings and presents a matrix on how to monitor children’s rights compliance. This model is not only helpful for the International Criminal Court15 but, according to Walsh, could also be used for the analysis of domestic criminal justice systems or other international proceedings. This third part of the book concludes by presenting four non-legal papers that offer interdisciplinary perspectives on children’s rights issues, including the assessment of the best interests of the child in migration cases (Beltman et al., Chapter 31), children’s participation in health care (Guerreiro and Fløtten, Chapter 32), comparative child research (Backe-Hansen, Chapter 30) and complaints procedures in custodial institutions (De Graaf, Christiaens and Dumortier, Chapter 29). All of the papers confirm the significance of moving beyond the legal paradigm when analysing the meaning and impact of children’s rights. At the same time, the papers also highlight that the inclusion of the crc and related international standards and recommendations, such as

14 15

See Chapter 24, p. 409. See also the recent dissertations of Beckmann-Hamzei (The Child in icc Proceedings (2015)) and Chamberlain (Children and the International Criminal Court (2015)).

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the General Comments issued by the crc Committee, as frames of reference can enrich the contribution of academic disciplines outside the legal or normative domain. 6

Part 4: Time for Action – Legislation, Policy Development and Advocacy

The fourth and final part of the book offers a mix of professional papers and presentations in which international (non-)governmental organisations provide information on research and advocacy projects and in which some scholars and practitioners present findings of their research concerning specific children’s rights themes in specific countries. These papers and presentations offer insight into important children’s rights challenges and give readers a better understanding on how to advocate for children’s rights implementation throughout the world, bearing in mind differences as far as local contexts are concerned. The first four chapters revolve around children’s participation in research (Trapp, Chapter 33; Kloosterboer, Chapter 34) and children’s participation in policy development and practice (Kooij Martinez, Chapter 35; Sanganyi, Chapter 36). In addition, Charrière’s paper (Chapter 37) on unicef’s role in engaging business and other stakeholders in enhancing children’s rights implementation addresses the issue of children’s consultation. The following chapters concern presentations by two (i)ngo’s on different children’s rights themes: Defence for Children International’s socio-legal defence model (Van Keirsbilck and Tomasi, Chapter 38); and International Child Support (ics) on furthering children’s rights through parent support services, using a project model in Kenya as an example (Van den Boom, Chapter 39). The book concludes with a series of papers on, first, child protection systems (Huijbregts and Chowdhury, Chapter 40; Kamimura, Orban Aragão Santos and Ballesteros, Chapter 41; Dijkstra, Chapter 42; Cardol, Chapter 43; and Martalas, Chapter 44) and, secondly, juvenile justice approaches (MarchenaSlot, Chapter 45; Zholdybayeva, Chapter 46). Huijbregts and Chowdhury focus on systems-strengthening in a low-income country, Mozambique. Evidence from subnational levels shows that the initiative to expand social protection assistance and strengthen child protection at the same time is already showing concrete results for some of the poorest and most marginalised children in Mozambique. The chapter takes stock of the lessons learned from this process.

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Kamimura, Orban Aragão Santos and Ballesteros present the findings of research conducted in 2011 to investigate the legal framework, public policies, coordination mechanisms and monitoring systems for addressing violence against children in ten South American countries; more specifically, the research studied the implementation of some recommendations of the un Secretary General’s Special Representative on Violence Against Children from the 2006 World Report on Violence Against Children. In a subsequent chapter, Dijkstra explores the impact of required co-­ parenting plans post-divorce and how professionals can best respond to secure children’s best interests in high-conflict cases. Cardol examines the radical changes effected to the Dutch child protection system in January 2015, changes which have simplified the way in which interventions into family situations can take place. A noticeable characteristic of the new system is that the best interests of the child have become more prominent so as to incorporate the crc into Dutch domestic law. In her chapter, Martalas too focuses on the postdivorce management of heightened conflict and on the importance of hearing children’s voices in this scenario. Finally, Marchena-Slot compares five different sentencing systems for adolescents within the Kingdom of Netherlands and calls for harmonisation of the relevant laws in order to become crc compliant. Zholdybayeva concludes this part of the book with a description of juvenile justice reforms that are under way in the Republic of Kazakhstan as part of a similar quest to implement the applicable provisions of the crc. 7

Moving ahead: Towards ‘50 Years crc’

Near universal ratification; a voluminous reporting process to the crc Committee spanning 25 years; enormous interest in the functioning of the crc Committee and the allied endeavours of Special Representatives of the un Secretary General working on discrete issues such as children and armed conflict and violence against children, and the Special Rapporteur on the sale of children, child prostitution and child pornography, have all set the scene for enhanced momentum towards embedding children’s rights as human rights, and for these rights to take a prominent role as being at the core of human development. There are many achievements that can be documented: 18 General Comments released by the crc Committee, with more under development; and the recognition of ‘new’ areas of concern, such as statelessness of children, the rights of lgbti children, children in street situations, ending child marriage, to mention only a few. The development of regional instruments, diagnostic

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tools, monitoring and evaluation instruments and the like all contribute to the implementation of rights in reality and at a level closer to where children live. Children have become central to the work of the European Commission, the Fundamental Rights Agency of the European Union and the Council of Europe,16 the International Criminal Court, and even the us Supreme Court in a non-State Party,17 in addition to which there are new initiatives concerning business principles and children’s rights. At the same time, many great challenges remain: these need not be detailed here, as they are ably spelt out in various domains, such as those relating to maternal and child health, to children in war and conflict situations, to children deprived of their liberty, to children facing difficult migration journeys, and to ongoing social exclusion of the most vulnerable. There are also ever-present threats to the nascent project of focusing on the rights of the child. One of these is the emergence of an agenda premised on the protection of the family, in which the rights of the child may well be subsumed to a conservative notion of ‘the ideal family’ and in which the voice of the child and her best interests as a primary consideration recede in favour of ‘group rights’. Furthermore, the notion of a singular family unit that envelopes the children and serves as her primary protection ignores the vast numbers of children who grow up in single families, in serial families that form and reform after divorce, in extended families and in non-traditional families. Our eye must remain focused on the child as a full bearer of human rights and not sacrifice the gains of the past 25 years at the altar of an unrealistic, idealised family structure. Another threat (hopefully remote) is the possibility of loss of State Party interest in the crc and its promise, or other forms of resistance against developing and improving the normative framework set in motion by the crc to improve children’s lives and their exercise of their rights. Effective international monitoring of children’s rights hinges, significantly, on State Party willingness to report, to follow up on concluding observations, and to implement these diligently at national, regional and local level. Mere lip service to the treaty body system is no substitute for earnest engagement with all stakeholders involved in the implementation of children’s rights, adherence to the core principles of the crc and firm action to prevent and follow up on rights violations.

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fra & Council of Europe Handbook on European Law Relating to the Rights of the Child (2015). For example, see the chapter by Dohrn in Liefaard T & Doek JE (eds) Litigating the Rights of the Child: The un Convention on the Rights of the Child in Domestic and International Jurisprudence (2015).

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On a more positive note, there seems to be no shortage of research on children’s rights, and teaching children’s rights is becoming ever more embedded in curricula (especially at post-school level). This bodes well for the ongoing deepening of engagement with children’s rights and our expansion of the knowledge base. If there is one thing that becomes apparent in this book, it is the complex nature of children’s rights and its implementation. On the one hand, the implementation of children’s rights poses a unique and childspecific set of challenges related to political, social and legal realities at the grassroots level that particularly affect children. Examples of such challenges are the denial of special status, discrimination/social exclusion, armed conflict, poverty, child mortality, violence against children, harmful cultural practices, migration, juvenile delinquency and so forth. On the other hand, the implementation of children’s rights is cumbersome due to the relationship between the public and private legal spheres, which goes beyond the more traditional vertical human rights relationship between the state and individual. Matters pertaining to children include the complex triangular relationship between state, parents/legal guardians and child. More specifically, international children’s rights do not only impose negative and positive obligations on state bodies, as these rights are further delineated by the role and responsibilities of the parents or other legal representatives of the child. A more recent development concerns the role of other private actors, such as businesses, in the implementation of international children’s rights, which is another step away from the more traditional approach of human rights protection and which has extended to the position of children in particular. 8 Conclusion The complex nature of children’s rights and their implementation underscores the need for research offering a critical perspective on the added value of international children’s rights as a means to create a better world for children, for the further exchange of research outcomes, and for more attention to be paid to specialised education and training. It is highly desirable that capable professionals be trained to deal with particular children’s rights issues and to contribute to the development of that area of children’s rights. Educational programmes should endeavour to make students experts on the characteristics and working of different children’s rights protection mechanisms in their specific political, social and legal settings and in the various ways in which they may coexist, overlap, intersect and influence each other. In addition, educational programmes should aim to enable future professionals to reflect

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critically on the particular challenges of implementing children’s rights at the domestic level in view of the special characteristics of children’s human rights. In this regard, it is promising that children’s rights have gained increasing attention in academia and have led to some specific programmes on international children’s rights or related issues. Hopefully, this book can support this development and be used as a source of inspiration. Bibliography Arts K ‘Twenty-Five Years of the United Nations Convention on the Rights of the Child: Achievements and Challenges’ 61(3) Netherlands International Law Review (2014) 267–303. Beckmann-Hamzei H The Child in ICC Proceedings (2015) Antwerp/Cambridge: Intersentia. Chamberlain C Children and the International Criminal Court (2015) Antwerp/Cambridge: Intersentia. FRA & Council of Europe Handbook on European Law Relating to the Rights of the Child (2015) Strasbourg. Freeman M ‘Why it remains important to take children’s rights seriously’ International Journal of Children’s Rights (2007) 5–23. Iusmen I & Stalford H (eds) The EU as a Children’s Rights Actor: Law, Policy and Structural Dimensions (2016) Opladen/Berlin/Toronto: Barbara Budrich Publishers. Liefaard T & Doek JE (eds) Litigating the Rights of the Child: The UN Convention on the Rights of the Child in Domestic and International Jurisprudence (2015) Dordrecht: Springer. Sloth-Nielsen J ‘Modern African childhood: Does law matter?’ in Freeman M (ed) Law and Childhood Studies (Current Legal Issues, Volume 14) (2012) Oxford: Oxford University Press 117–32. Sloth-Nielsen J ‘Global, Regional, Subregional? Prospects and pitfalls for children’s rights in future’ Unpublished inaugural lecture, Leiden University, 2014. UNICEF Law Reform and Implementation of the Convention on the Rights of the Child (2007a) Florence: Innocenti Research Centre. UNICEF Protecting the World’s Children: Impact of the Convention on the Rights of the Child in Diverse Legal Systems (2007b) Cambridge: Cambridge University Press. UNICEF Championing Children’s Rights: A Global Study of Independent Human Rights Institutions for Children (2013) Florence: Innocenti Research Centre. Vandenhole W et al. (eds) Routledge International Handbook of Children’s Rights Studies (2015) Abingdon: Routledge.

Part 1 Reflections on Different Children’s Rights Perspectives

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chapter 2

The Convention on the Rights of the Child: 25 Years and Beyond Vitit Muntarbhorn Abstract This chapter examines through various lenses key developments that have occurred since the adoption in 1989 of the crc, which it views as an instrument of change through multifaceted actions. It looks at the crc’s impact at the national level in a variety of new laws (and law reforms), policies, programmes, practices and other implementation measures. It also considers some recurrent weaknesses, including lax enforcement in some countries, coupled with inequitable development, armed conflicts and violence, environmental degradation, negative aspects of technology, impunity for violations, and limited child participation. The chapter provides a forward-looking discussion, underlining new developments particularly at the global level. 2015 was also the year when the Sustainable Development Goals were adopted by the international community to guide global developments until the year 2030, with various targets directly linked with child rights, such as the elimination of violence against children and of child labour. The chapter raises the issue of global warming and the question of natural disasters, bearing in mind the call for more preventive action, preparedness and mitigation measures. The author advocates for cross-links to be made with the work of human rights bodies as part of the bridge-building process, and highlights the need for accountability mechanisms at the international level, especially where they are deficient at the national level.

1 Introduction The adoption of the Convention on the Rights of the Child (crc) by the global community at the end of 1989 opened the door to what would become the most widely ratified human rights treaty in the world.1 Almost all countries are   parties to the crc, while Asia – the region with the largest number of

1 For a wide range of un-related documents, see http://www.ohchr.org (accessed 24 November 2015).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_003

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­children – has witnessed ratification by all countries. The twenty-fifth anniversary of this seminal convention is both a time to celebrate and commemorate as well as an invitation to look ahead. On reflection, the crc entrenches four key concerns relating to the child – defined by the crc principally as a person under 18 years of age – through a variety of entitlements guaranteed by the state: child survival, child development, child protection and child participation, all of which are based on nondiscrimination for all children irrespective of origin. The right to life enunciated by the crc is interlinked with child survival, with implications for addressing child malnutrition and mortality and their relationship with maternal mortality. Despite progress on many fronts since the advent of the crc, child deaths ensuing from basic deprivations remain pervasive in parts of the world today. About 17,000 children under five years die every day, according to a recent report by the United Nations Fund for Children (unicef).2 Regarding child development, while access to education, an adequate standard of living and health are underlined by the crc and are in principle an undisputed priority, implementation varies according to country and region. Debilitating conflicts have dampened gains in some of the countries where significant headway had been made previously. Meanwhile, child protection against abuse, exploitation, neglect and violence remains a recurrent challenge, traversing both developing and developed countries even though the types of violation may differ. For instance, while computerised child pornography is more prevalent in some developed countries, other forms of child exploitation, such as in agricultural labour and debt bondage, are prevalent in some developing regions.3 Corporal punishment, particularly its practice within families, has not been outlawed by a large number of countries.4 The transborder aspect of violence and abuse, such as through human trafficking, makes the geographical divide between countries less significant. This reinforces the relevance and importance of the crc as a legal umbrella protecting all children everywhere. On a related front, while all countries accept child participation linked with respect for the views of the child as a key principle under the crc, that prescription remains only nominally accepted when it confronts ingrained

2 unicef The State of the World’s Children 2015: Executive Summary (2014) 31. 3 See http://www.ilo.org/ipec (accessed 24 November 2015). 4 Forty-three countries have abolished corporal punishment. See http://www.endcorporal punishment.org/ (accessed 9 March 2015).

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hierarchies and cloistered mindsets, with the result that there is a substantive gap in its effective implementation. On analysis, a key contribution of the crc is that it posits the rights of the child in the framework of human rights as a whole, while highlighting further specifics as a value-add. The right to life and non-discrimination mentioned above are entrenched as part of the international human rights framework. This reaffirmation of human rights standards, through the sanctity of the child, enriches the universality of human rights with global reach. Concurrently, the crc raises specific considerations pertaining to children in a range of precarious settings, such as child welfare institutions and the juvenile justice system, precisely because of the vulnerability of the child and the call for childsensitive measures. 2

The Added Value of the crc

In addition, the added value of the crc can be viewed through the following lenses: 2.1 The crc is an Instrument of Change During the past 25 years many countries have witnessed law reforms aimed at raising standards in order to comply with the crc. The classic case is abolition of the death penalty for persons under 18 years of age.5 Children should also be viewed as subjects of rights rather than as objects of duties. The nondiscrimination principle inherent in child rights enables all actions to be tested through the prism of addressing not only the nationals of a Member State but also non-nationals and stateless persons. The best interests of the child espoused by the crc enables the weighing of interests so that it is the child who is protected, especially when adults seek to impose their will and confine the choices available to the child in question; third parties such as courts and administrative authorities have a role in examining and balancing the various considerations affecting the child. Meanwhile, respect for the child’s views acts as an underlying principle for the crc, bringing into play the spirit of democracy and democratisation from the classroom to the family setting and beyond. Linked with that principle, child participation has spread on some fronts by involving children increasingly in a number of activities, such as through 5 Partly as a result of crc membership, in 2003 Thailand abolished the death penalty for persons under 18 years of age. Interestingly, the United States Supreme Court abolished the death penalty in 2005, even though the country is not yet a party to the crc.

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children’s parliaments or assemblies which offer advice on child-related law and policy.6 2.2 The crc is a Bridge for Partnerships The crc has opened the door to, and nurtured cooperation with, a broad range of actors who have impacted on child rights, a situation enhanced by the need for effective collaboration. For instance, in relation to juvenile justice, the crc invites a bridge to be built not only with juvenile courts and judges but also with prison officials, other law enforcers, families, nongovernmental organisations and civil society. The call for interdisciplinary teams to deal with children in various difficulties has meant that teams of social workers, doctors, psychologists, community actors and other personnel should be formed to address not just the physical but the psychological needs of the child and to assist in children’s recovery and social reintegration. The provisions in the crc (and the subsequent Protocol on the Involvement of Children in Armed Conflicts referred to below) require networking with the armed forces and related personnel to help prevent and prohibit the involvement of children in armed conflicts. Outreach to non-state armed groups is also needed so as to influence them to commit to measures not to recruit children in these situations. 2.3 The crc is a Window for Multifaceted Actions The crc motivates changes, especially at the national level, including through laws, policies, practices, mechanisms and personnel, resource allocations, information/monitoring, education/capacity-building, and a process of mobilisation, networking and participation with a view to reform. Thus, children’s codes and specific laws integrating child rights into the national system have been enacted increasingly, due to the influence of the crc.7 Conversely, law and policy reform has taken place in many countries to discard outdated laws and raise national practices to international standards. Programmes on child rights, such as those in training and education, have expanded globally. Judicial enforcement of child rights has also been inspired by the crc, whether directly or indirectly.8 6 See http://www.gmfc.org/en/action-within-the-movement/gmc-actions/actions-by-impe­ ratives/6-listen-to-children/past-actions/41--childrens-parliaments-around-the-world (accessed 9 March 2015). 7 For example, Brazil’s Children’s Code 1990 was passed to implement the crc. 8 For example, Canadian courts have been inspired by the crc, although due to the dualistic approach towards international treaties, the crc (and other treaties) is not automatically

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2.4 The crc is a Mirror for Self-Reflection Monitoring of crc implementation by States Parties is provided by the crc Committee established by the Convention; the body receives periodic reports from States concerning their implementation measures and issues recommendations in the form of Concluding Observations. Tracing and tracking performance are essential for testing the effectiveness of actions. Thus, an important development is to build databases and monitoring systems, with disaggregated statistics, to measure progress, particularly at the national level, to assess improvements and related challenges. unicef has also improved its databases by offering more consistent data analyses of key issues affecting children, such as through its State of the World’s Children reports, which cover not only survival issues like food, health and water and sanitation but also broader child protection issues, such as violence.9 unicef’s reports complement those of crc Committee in a never-ending cycle of change.10 2.5 The crc is a Gateway to Commitments The crc opens the door to (further) commitments to assist and protect children. Thus, today it is complemented by three Protocols setting standards on the protection of children from participation in armed conflicts;11 on the prohibition of the sale of children, child prostitution and child pornography;12 and, most recently, on the enablement of children or their representatives to communicate with the crc Committee for remedies where local remedies have been exhausted or are deficient.13 In regard to the most recent Protocol, given that the Committee is not a court of law, it does not pass judgements in regard to the communications, but it can issue recommendations with persuasive force. Another example of the crc as a gateway to commitments is its interrelationship with the International Labour Organisation (ilo) on child labour standards. While the crc does not stipulate the exact minimum age for work,

9 10 11 12 13

binding in the domestic courts unless there is implementing legislation. See further http://www.canadiancrc.com/UN_Convention_Rights_Children_Canadian_Courts _Implementation_Chamberland_en_Nov04.aspx (accessed 9 March 2015). See generally http://www.unicef.org/publications/. See generally http://www.ohchr.org. For the Optional Protocol to the crc on the Involvement of Children in Armed Conflict, see generally http://www.ohchr.org. For the Optional Protocol to the crc on the Sale of Children, Child Prostitution and Child Pornography, see generally http://www.ohchr.org. For the Optional Protocol to the crc on a Communications Procedure, see http://www .ohchr.org.

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the threshold is provided – and has been raised – by other Conventions under the auspices of the ilo: ilo Convention No. 138 establishes 15 years as the minimum age of work, while ilo Convention No. 182 prohibits the worst forms of child labour, such as child prostitution and hazardous work, for those who are under 18 years.14 Regional charters have gone further in raising the bar of protection: for example, the European Convention on the Exercise of Children’s Rights,15 the European Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse,16 and the African Charter on the Rights and Welfare of the Child.17 The Inter-American system has various instruments on child protection.18 South Asia has a Convention on child welfare arrangements,19 while the Association of South-East Asian Nations has established a Commission on the Rights of Women and Children; the latter has adopted a Declaration concerning violence against women and children.20 Not all the regional standards are compliant with the crc, however. For instance, the Arab Charter on Human Rights opens the door to capital punishment imposed on persons under 18 years; this would be in breach of the crc, which prohibits it absolutely.21 3

Challenges to Child Rights

Despite the flurry of commitments on child rights, several challenges are evident, particularly at the national level, including the following:

14 See http://www.ilo.org. 15 See http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/160 (accessed 9 March 2015). 16 Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse 2007, available at http://www.conventions.coe.int/Treaty/en/Treaties/ Html/160.htm (accessed 9 March 2015). 17 See generally http://pages.au.int/acerwc/documents/african-charter-rights-and-welfare -child-acrwc. 18 There are treaties on the return of children and on the traffic in minors. See further http:// www.oas.org/juridico/english/treaties/b-53.html (accessed 24 November 2015). 19 See http://www.saarc-sec.org/userfiles/conv-children.pdf (accessed 24 November 2015). 20 See http://www.asean.org/sixth-press-release-of-the-asean-commission-on-the-promo tion-and-protection-of-the-rights-of-women-and-children-acwc/ (accessed 24 November 2015). 21 See generally http://www.humanrights.ch/en/standards/other-regions-instruments/arab -charter-on-human-rights.

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• weak implementation, coupled with corruption, in some countries; • persistence of reservations whereby some countries still decline to accept various provisions of the crc; • poverty and inequity, coupled with disparity and discrimination; • armed conflicts; • multiple forms of violence, victimisation and re-victimisation; • harmful practices such as female genital mutilation; • environmental degradation, at times linked with natural disasters; • the negative aspects of technology, such as internet-related violence and child pornography; • impunity and lack of accountability; and • ‘lip service’ or tokenism with regard to child participation. 4

Opportunities to Raise the Profile of Child Rights

2015 is not only the twenty-fifth anniversary of the crc but also a year of various events at the international level which provide a golden opportunity to raise the profile of child rights in the next decades. The following linchpins invite attention. 4.1 Sustainable Development Goals At the turn of the millennium, the global community adopted the Millennium Development Goals (mdgs) which laid the groundwork for a global strategy with regard to human development, including children, between 2000 and 2015.22 This was complemented by the un General Assembly resolution on a World Fit for Children.23 The mdgs were based upon eight key targets, some of which focused directly on children. While the goals were not expressly related to ‘rights’, they helped to mobilise policies, programmes and resources in a fifteen-year time-frame. While some of the goals have been well-implemented, others have not. The eight mdgs can be summarised as follows: 1. 2.

reduce poverty by half; ensure that boys and girls access and complete primary education;

22 See generally http://www.un.org/millenniumgoals/. 23 See http://www.unicef.org/specialsession/docs_new/documents/A-RES-S27-2E.pdf (accessed 9 March 2015).

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2.2

3.2

4.1 4.2 4.3 4.4 4.5

4.6 4.a 5.1 5.2 5.3

Muntarbhorn sdgs – Targets concerning children derived from the 2030 Agenda for Sustainable Development

By 2030, end all forms of malnutrition, including achieving, by 2025, the internationally agreed targets on stunting and wasting in children under 5 years of age, and address the nutritional needs of adolescent girls, pregnant and lactating women and older persons. By 2030, end preventable deaths of newborns and children under 5 years of age, with all countries aiming to reduce neonatal mortality to at least as low as 12 per 1,000 live births and under-5 mortality to at least as low as 25 per 1,000 live births. By 2030, ensure that all girls and boys complete free, equitable and quality primary and secondary education leading to relevant and effective learning outcomes. By 2030, ensure that all girls and boys have access to quality early childhood development, care and pre-primary education so that they are ready for primary education. By 2030, ensure equal access for all women and men to affordable and quality technical, vocational and tertiary education, including university. By 2030, substantially increase the number of youth and adults who have relevant skills, including technical and vocational skills, for employment, decent jobs and entrepreneurship. By 2030, eliminate gender disparities in education and ensure equal access to all levels of education and vocational training for the vulnerable, including persons with disabilities, indigenous peoples and children in vulnerable situations. By 2030, ensure that all youth and a substantial proportion of adults, both men and women, achieve literacy and numeracy. Build and upgrade education facilities that are child, disability and gender sensitive and provide safe, non-violent, inclusive and elective learning environments for all. End all forms of discrimination against all women and girls everywhere. Eliminate all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation. Eliminate all harmful practices, such as child, early and forced marriage and female genital mutilation.

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By 2030, achieve full and productive employment and decent work for all women and men, including for young people and persons with disabilities, and equal pay for work of equal value. By 2020, substantially reduce the proportion of youth not in employment, education or training. Take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms.

Source: un Transforming Our World: The 2030 Agenda for Sustainable Development (2015).

3. eliminate gender disparity in primary and secondary education; 4. reduce by two-thirds the mortality rate for children under five years; 5. reduce by three-quarters the maternal mortality rate; 6. combat aids, malaria and other key diseases; 7. promote environmental sustainability; and 8. develop global partnership. In particular, the first mdg target of eradicating extreme poverty by halving the number of persons living on less than usd 1.25 a day was achieved before 2015. Yet the realisation of goals 4 and 5 has fallen short of the targets: child mortality and maternal mortality are still pervasive in parts of South Asia and Africa.24 The mdgs are to be followed by Sustainable Development Goals (sdgs), adopted by the world community in 2015. In the next phase, it is logical to aim for total eradication of poverty, while advocating stronger measures against child mortality and maternal mortality. At the time of writing, there are 17 24

United Nations The Millennium Development Goals Report 2014 (2014). See further http:// www.un.org. The seventeen goals concern elimination of poverty; hunger, with food security; health; quality education; gender equality; water and sanitation for all; sustainable energy; inclusive growth; sustainable industrialisation; reduction of inequality; safe cities; sustainable consumption; tackling of climate change; conservation of marine resources; protection of ecosystems; peaceful and inclusive societies; and global partnership for sustainable development.

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proposed goals for the next 15 years.25 Significantly, some of the goals have targets specifically relating to children, as shown in Table 2.1. Ultimately, the major challenge for the next 15 years will be to implement well not only the sdgs but also the goals pertaining to the areas underperformed or unfulfilled among the mdgs. 4.2 Global Warming The issue of global warming, having crept to the fore in recent years, is now increasing in its momentum as the world witnesses abnormal weather conditions and ominous environmental signs affecting the whole of humanity. Negotiations are apace to try to cap carbon emissions so that the global rise in temperature in the next phase should not exceed two degrees Celsius, prospectively, with an all-embracing treaty to be finalised and adopted in Paris in 2015. The groundwork on this issue was provided by the United Nations F­ ramework Convention on Climate Change 1992,26 a framework instrument leading to more detailed instruments. This was bolstered by the Kyoto Protocol 1997,27 particularly with commitments by developed countries to reduce their emissions in a specific time-frame. The Kyoto Protocol has now expired, hence the need to reach a new agreement in Paris. On this front, the new elements of the global framework should cover reductions by not only developed countries but also developing countries. Incentives and pooling of resources will be needed to enable the latter to adapt effectively. Other issues on the table include: mechanisms for loss and damage; long-term finance to help adaptation; and nationally appropriate mitigation actions. It is a key rationale for effective global commitments against carbon emissions and related threats. It is also an invitation to child rights advocates and related lobbies to use the path to a comprehensive ­accord in 2015 to highlight the common destiny awaiting adults and children and the nexus between environmental sustainability and child protection.

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un Transforming Our World: The 2030 Agenda for Sustainable Development, available at http://www.un.org/…/120815_outcome-document-of-Summit-for-adoption-of-the-post -2015-development-agenda.pdf (accessed 14 January 2016). 26 See http://www.unfccc.int/meetings/unfccc_calendar/items/2655.php?year=2015 (accessed 24 November 2015). 27 See http://www.unfccc.int/kyoto_protocol/items/2830.php (accessed 24 November 2015). For update on the agreement reached in Paris at the end of 2015:https://unfccc.int/ resource/docs/2015/cop21/eng/l09r01.pdf (accessed 14 January 2016).

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4.3 Natural Disasters The spread of natural disasters, at times intermixed with man-made disasters, has also come to the fore in recent years as an ominous global issue, with children as victims of the phenomena needing concerted national and international attention. The global impetus on this front began several decades ago with the International Decade on Disaster Reduction.28 This was followed by the Yokohama Strategy and Plan of Action adopted by the global community in the 1990s to reduce risks and prepare for dangers under the caption ‘Prevention, Preparedness and Mitigation’, including risk monitoring.29 The current global disaster response framework is the Hyoko Framework for Action 2005–2015, the follow-up plan for which was finalised with a global conference in Sendai, Japan in March 2015.30 The actions emphasised by these initiatives include risk reduction as a national priority; identification of risks; building a culture of safety; strengthening of disaster preparedness; early warning; promotion of food security; and adoption of building codes to ensure public safety. It is critical to mobilise comprehensive actions to prepare for and mitigate disasters. Child rights advocates and related lobbies would do well to underline the link between these responses and child protection and assistance in times of disaster-related emergencies, as well as to forewarn of risks and strengthen disaster preparedness. 4.4 Cross-Links with Other Human Rights Bodies No man is an island – nor is the crc and its Committee. Thus a welcome development is for the crc and the Committee to cross-link with other human rights bodies to maximise the implementation of child rights, at times concomitantly with the rights of other groups, especially women’s rights. This happened recently for the first time when the crc Committee and the Committee under the Convention on the Elimination of All Forms of Discrimination against Women (cedaw Committee) worked together on issuing a General Recommendation/Comment (gr/gc) on Harmful Practices, thus providing greater clarity and guidance on the issue. Due to their joint work, there are now criteria as to what constitute harmful practices: 28

For International Decade for Natural Disaster Reduction, see http://www.unisdr.org/we/ inform/publications/31468 (accessed 24 November 2015). 29 See http://www.unisdr.org/we/inform/publications/31468 (accessed 24 November 2015). 30 For more on The Third un World Conference on Disaster Risk Reduction, see http://www .wcdrr.org/conference (accessed 24 November 2015).

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Harmful Practices 15. For the purposes of this gr/gc, to be regarded as harmful, practices should meet the following criteria: a. They constitute a denial of the dignity and/or integrity of the individual and a violation of human rights and fundamental freedoms enshrined in the two Conventions; b. They constitute discrimination against women or children and are harmful insofar as they result in negative consequences for them as individuals or groups, including physical, psychological, economic and social harm and/or violence and limitations on their capacity to participate fully in society or develop and reach their full potential; c. They are traditional, re-emerging or emerging practices that are prescribed and/or kept in place by social norms that perpetuate male dominance and inequality of women and children, based on sex, gender, age and other intersecting factors; d. They are imposed on women and children by family, community members, or society at large, regardless of whether the victim provides, or is able to provide, full, free and informed consent.31 Four instances are singled out for counteraction: female genital mutilation, child marriages, polygamy, and honour crimes. There are further opportunities for the crc Committee to work with other human rights committees, possibly also to undertake field visits together and to make the various bodies more accessible to people and children at the community level. The cooperation can be enhanced by more dialogue and joint action with other mechanisms and processes under the un, in particular Special Procedures such as Special Rapporteurs and related mechanisms (several of which deal with child right issues), and the Universal Periodic Review (upr) under the un Human Rights Council, with which every state has participated.32 4.5 Accountability Mechanisms Human rights violations today are still too often perpetrated in – and fostered by – a climate of impunity, including those where the victims are children. 31 Joint cedaw-crc General Recommendation/Comment on Harmful Practices, available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15250& LangID=E. 32 See further http://www.ohchr.org. Interestingly, even countries which are not yet a party to the crc or other human rights treaties, have participated in the upr.

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While at times remedies are possible at the national level, there are several instances where there is a protection gap, and egregious violations need to be countered internationally. Thus, the emergence of international criminal tribunals opens the door to more responsibilisation. While it is the state which has the primary responsibility for protecting human rights, including child rights, the obligations related thereto cover all actors, and the means to do so are expanding. The advent of the International Criminal Court (icc) enables criminal responsibility to be imposed on individuals with regard to various crimes, including war crimes and crimes against humanity. The use of persons under 15 years as child soldiers is a war crime, while indiscriminate attacks on civilians constitute war crimes and or crimes against humanity, depending upon the nature of the conflict.33 Interestingly, the first two cases recently decided upon by the icc concerned children directly and indirectly. In the Lubanga case, the leader of a non-state armed group was found to be guilty of a war crime, namely the use of children under 15 years as soldiers.34 In the second case, the Katanga case, another leader of a non-state armed group was found to be guilty of war crimes and crimes against humanity for attacking the civilian population (including children) in an indiscriminate manner.35 Yet the icc does not have jurisdiction over states which are not parties to the icc Statute and their nationals, unless another process is triggered. In such cases, it is the Security Council which has the power to cross-refer individuals to the icc for trial, even where they come from non-State Parties. At another level, the Security Council has other powers to sanction states, groups and individuals for violations that threaten international peace and security, and the use of child soldiers and attacks on civilians fall under this umbrella.36 Various groups and individuals can be and have been listed by the Security Council directly for sanctions, including visa bans, asset freezes and other targeted actions. Hence, there is now a variety of entry points for accountability, and the pathway is expanding.

33 See https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome _statute_english.pdf. 34 See https://www.icc-cpi.int/iccdocs/PIDS/publications/LubangaENG.pdf. 35 See https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/ Pages/pr986.aspx. 36 On sanctions and children in armed conflict, see https://www.childrenandarmedconflict .un.org/our-work/sanctions/ (accessed 24 November 2015).

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Concluding Remarks

This is thus an auspicious time not only to salute the importance of the ‘crc at 25’ but also to capitalise upon its nexus with other key developments, specifically in order to reinforce the implementation of child rights in the broader panorama of global developments. Bibliography Reports

UN Transforming Our World: The 2030 Agenda for Sustainable Development, available at www.un.org/…/120815_outcome-document-of-Summit-for-adoption-of-the-post -2015-development-agenda.pdf (accessed 14 January 2016). UNICEF The State of the World’s Children 2015: Executive Summary (2014). United Nations The Millennium Development Goals Report 2014 (2014).

Miscellaneous

CEDAW-CRC General Recommendation/Comment on Harmful Practices, available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15250&L angID=E.

chapter 3

Protecting Children across Borders: The Interaction between the crc and the Hague Children’s Conventions Hans van Loon Abstract The crc identifies a range of issues transcending the boundaries of a single state – transnational problems – and calls on States Parties to cooperate to resolve them. This chapter highlights the role of the Hague Conference on Private International Law in this regard, in particular through four multilateral treaties, the Hague Child Abduction, Intercountry Adoption, Child Protection and Child Support Conventions, which it drew up and continues to service. These global Conventions apply innovative techniques, including direct cross-border cooperation between executive authorities and courts, to prevent and combat in a practical way some of the serious risks of ongoing globalisation for children and families. The chapter discusses their relationship and interaction with the crc. It concludes that the Hague Convention and the crc are to be viewed as a tool package, and that the Committee on the Rights of the Child, unicef, the Hague Conference and all other interested parties, including ngos, are well-advised to intensify their efforts to promote the effective implementation and ­operation of these Conventions.

1 Introduction We are celebrating the twenty-fifth anniversary of the un Convention on the Rights of the Child (crc).1 The adoption of the Convention, on 20 November 1989, followed less than two weeks after another historic event, the twentyfifth anniversary of which we are also commemorating this year: the fall of the ­Berlin Wall on 9 November 1989. The latter has been said to mark the beginning of, or at least to have spurred on, modern globalisation,2 the ‘widening,

1 In force 2 September 1990, 1577 unts 3. 2 See, for example, The Economist, 5 November 2009, and, generally, Baylis J, Smith S & Owens P (eds) The Globalization of World Politics: An Introduction to International Relations (2014) 44.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_004

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deepening, and speeding up of worldwide interconnectedness’3 not only of states but economies and societies, cultures and politics – indeed, of companies and individuals, adults and children. It is significant that the adoption of the crc coincided with the beginning of this new stage in the development of our emerging ‘global society’. Significant, first, because increasing worldwide interdependence reinforces the need to develop global standards for the common good and to make them work, with the crc clearly being a response to the call for such standards in respect of humanity’s future: its children. Significant, too, because one of the effects of globalisation is that it intensifies and multiplies issues and risks for families and children, including in their mutual relations, as they move – increasingly and on a global scale – across international borders. Such issues and risks relate to, among others, custody of children, access, relocation, and parental child abduction; child support; adoption and foster care; and surrogate parenting, all of which are matters that are aggravated when families and children migrate illegally to other countries, or are displaced due to civil war or natural disasters. In contrast with the un Human Rights Covenants or the European Convention on Human Rights, which are framed mostly in terms of human rights ­vis-à-vis individual states, the crc in a number of its articles identifies such transnational problems as those mentioned above, and calls on its States ­Parties to cooperate to resolve them, including by acceding to existing international instruments or by concluding new ones. That brings us to the Hague Conventions on private international law. The Hague Conference on Private International Law (‘The Hague Conference’), based in The Hague but with regional offices in Latin America (Buenos Aires) and the Asia-Pacific region (Hong Kong),4 has a long tradition of developing and servicing multilateral treaties (‘Conventions’) dealing with various issues that arise because of the fact that civil and commercial laws in our world are not uniform but differ, often widely, from each other. During the past 35 years the Hague Conference has developed several Conventions specifically to address cross-border issues and risks faced by families and children under civil law.5 These Hague Conventions support and interact with the crc. The following four modern Hague Children’s Conventions in particular are important in this regard: 3 Baylis J, Smith S & Owens P (eds) The Globalization of World Politics (2014) 16, fn. 2. 4 See http://www.hcch.net. 5 Criminal law, which usually provides protection only ex post, is not part of the Hague Conference’s mandate.

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• The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Hague Abduction Convention);6 • The Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of Inter-country Adoption (Hague Adoption Convention);7 • The Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition and Enforcement, and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (Hague Child Protection Convention);8 and • The Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (Hague Child Support Convention)9 and its Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations.10 The Hague Abduction Convention, adopted in 1980, precedes the crc and therefore could not refer to it; rather, the Hague Abduction Convention provided the inspiration for article 11 of the crc. The three other Hague Conventions, adopted after 1989, all do refer to the crc in their Preambles. Conversely, the Preamble of the Optional Protocol to the crc on the Sale of Children, Child Prostitution and Child Pornography, adopted on 25 May 2000 and entered into force on 18 January 2002, refers to the Hague Abduction, Adoption and Protection Conventions. So, through formal cross-references at the outset, the crc family and the Hague family are visibly linked to one another. What interests us here, of course, is how the Hague Conventions and the work to support their implementation by states and their operation in practice  – ‘post-Convention services’ in Hague Conference parlance – help turn the values, principles and norms of the crc into reality. 2

Child Abduction

Let us start with the abduction of children by parents across international borders, a growing global issue and the main concern of article 11 of the crc, which declares: 6 7 8 9 10

In force 1 December 1983. In force 1 May 1995. In force 1 January 2002. In force 1 January 2013. In force 1 August 2013.

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1.

States Parties shall take measures to combat the illicit transfer and nonreturn of children abroad. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.

2.

Article 11 calls on states, in general terms, to take action, using the treaty instrument, to combat the wrongful removal or retention (after a visit to a parent abroad) of children, in particular by one of their parents. Implicitly, it accords to the child the right to be protected against such wrongful removal or retention. The issue which states are called upon to resolve is in reality a problem in the family sphere, the private sphere, in cross-border situations – therefore it is the primary responsibility of the parents themselves. Not much can be expected from criminal sanctions when parents take the law into their own hands in such a situation. Sanctions will have little if any preventive effect, and, if applied to a case at hand, will generally not result in a return of the child, let alone a re-establishment of the bond with both parents. Save in exceptional cases, the solution hence must be found not in criminal measures but in cross-border cooperation through private international law. Imagine a family with one or more children. One day, one parent, without the other parent’s consent, takes the child, or children, to another country, or retains them after a visit, away from the centre of their lives, away from the other parent – a disruption of their young lives. The left-behind parent suddenly faces a range of problems, which he or she in most cases is unable to resolve alone. Indeed, these are problems which the authorities of that parent’s home state are usually themselves unable to resolve, unless they can call on the authorities and courts of the country to which the children were taken: Where are the children, how can they be contacted and, of course, how can they be to returned in order to re-establish the bond with both parents? The re-establishment of that bond is the underlying concern not only of article 11 of the crc but its articles 9 and 10, which confirm the child’s right to live with both parents, and, in case of a child’s separation from one of the parents, ‘to maintain personal relations and direct contact with both parents on a regular basis’, including in the case of a ‘child whose parents reside in different States’ (article 10 (2)). Arguably, article 18 of the crc, which recognises that ‘both parents have common responsibilities for the upbringing and development of the child’, is also relevant here, because the wrongful removal or retention across international borders may render the sharing of

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these responsibilities – which is now increasingly common in comparative law – illusionary.11 Joining the Hague Abduction Convention12 is a critical step to facilitate the re-establishment of these common responsibilities of the parents. A key feature of this Convention is its mechanism for transnational cooperation through administrative public bodies, ‘Central Authorities’, to which the left-behind parent may apply. These Central Authorities must act promptly to locate the children, secure their voluntary return and, if necessary, obtain a court order to return them in order to re-establish the bond with both parents (article 7). The Convention relies extensively on such cooperation between Central Authorities rather than primarily on court intervention, although the latter is often inevitable in these complicated conflictual situations. It is vital, therefore, that States Parties ensure that Central Authorities are well-equipped and -resourced. Each State Party to the Convention accepts the obligation to return a child who has been wrongfully removed or retained (article 12).13 This applies even if the child has the nationality of the state of refuge (possibly in addition to citizenship of the state of origin), because that is no justification for the unilateral removal of the child. It also follows from article 11 of the crc, read together with its article 2, that the measures to combat this conduct should be taken without discrimination on the basis of the child’s national origin or, for that matter, religion. 11

Whilst the upbringing and development of the child is the primary responsibility of the parents, article 18 ‘at least implicitly requires States Parties to the crc to take legislative, social or other measures that can encourage and facilitate that parents act in accordance with this principle’. See Doek JE ‘Letter to the Council of Europe Committee of Experts on Children and Families (cs-ef)’ Dec. 8 and 9, 2004. 12 See http://www.hcch.net/index_en.php?act=conventions.text&cid=24; see also the specialised section on the Hague Conference website, https://www.hcch.net/en/instruments/ conventions/specialised-sections/child-abduction. 13 Article 12: ‘Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.    The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.    Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child’.

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Religious concerns may even be an obstacle impeding some countries from joining the Abduction Convention in the first place – so far Morocco is the only state whose family law is based on Islamic law to have acceded to the Convention. The difficulty here is that the Abduction Convention requires the authorities of the state of refuge to determine the wrongfulness of the removal or retention, not according to their own law but that of the state of origin (article 3). As such, there may be cases where the abduction is wrongful under the latter law but lawful under the former.14 The basic idea nevertheless is that parents must not take the law into their own hands and thereby manipulate the factual situation by creating a fait accompli. Decisions on custody, relocation and access should be taken in the country where the child lived before the abduction. Of course, the return obligation of article 12 cannot be automatic, which is why the Convention provides certain exceptions: if there is a grave risk of harm to the child,15 or if a mature child objects,16 then the return may be refused. In broad outline this is how the Child Abduction Convention operates and how it gives practical meaning to what article 11 of the crc seeks to achieve. But the interaction works both ways. Article 12 of the crc defines the right of the child to be heard in any proceedings affecting the child. This is more compelling language than that of the Abduction Convention, and that is why, for example, the European Union (eu) regulation No. 2201/2003 ‘Brussels ii bis’ or ‘Brussels ii a’, which builds on the Abduction Convention, has reinforced the

14

15

16

Of course, the rule has reciprocal effect, and this should facilitate its acceptance, in particular where abductions are occurring in both directions between countries. The Hague Conference has engaged in what has become known as ‘The Malta Process’, a dialogue between judges and other authorities from States around the Mediterranean and beyond on ways to secure better protection for cross-frontier rights of contacts of parents and their children and the problems posed by international abduction between the states concerned; see http://www.hcch.net/index_en.php?act=publications.details&pid=5214& dtid=46#malta. Article 13(1): ‘Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – […] b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.’ Article 13(2): ‘The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.’

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obligation of the authorities of eu Member States to give the child the opportunity to be heard when they apply the Abduction Convention.17 The Child Abduction Convention has, on the whole, been a success and widely ratified. But in the meantime, perhaps in part because of its success, the standard profile of the ‘taking’ parent has changed. Originally, the typical case involved a parent, often the father, who did not have the care of the child and who took the child away from the caring mother, creating an obvious risk for the child’s safety. Nowadays, in two-thirds of cases it is the parent, usually the mother, who has the care of the child, or shares this care with the father, who takes the child, often claiming abuse by the father.18 On the other hand, the left-behind parent now often uses the return mechanism of the Convention to obtain access to, rather than the return of, the child. According to article 3 of the crc, ‘in all actions concerning children, the best interests of the child shall be a paramount consideration’. Is it still in the child’s best interest to apply the Hague Convention in such cases? The question has been raised in meetings of the Hague Conference and before various national courts, even before the European Court of Human Rights. But remember: the whole purpose of the prompt return mechanism is to make sure that the issues of substance, issues of custody, relocation and access, are decided by the court of the state from which – and not by the court of the state to which – the child has been taken. The return decision has to do with immediate risks the child faces, the custody decision with the child’s long-term best interests. So, although courts have wrestled with the question, claims based on article 3 crc, or article 8 of the European Convention on Human Rights, to set the Abduction Convention aside, have generally not been successful. The European Court of Human Rights, in the case of Neulinger and Shuruk v Switzerland, had raised concern19 by language that seemed irreconcilable with the Child Abduction’s summary return mechanism.20 Three years later, the Court, in X 17

18

19 20

Council Regulation (ec) No 2201/2003 of 27 November 2001 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (ec) No 1347/2000, Articles 11(2), 23(b), 41(2)(c), 42(2)(a). See Lowe N ‘A Statistical Analysis of Applications made in 2008 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction’ Part i, Global Report. And see extensively on the socio-legal ‘paradigm shift’ that has occurred since the drafting of the Convention, Schuz R The Hague Child Abduction Convention: A Critical Analysis (2013) (in particular Chap. 1.3), reviewed by the author in 1 Netherlands International Law Review 62, 201–06. See, for example, Schuz, fn. 18, 26–29 and passim. ECtHR, Grand Chamber, 6 July 2010, (41615/07), see in particular para. 139.

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v Latvia,21 distanced itself from that language22 and stressed the distinction between custody proceedings and return proceedings. The Court made it clear that article 8 imposes a procedural obligation on national authorities to consider, with a view to ensuring the safe return of the child within the context of the Hague Convention, arguable claims of a grave risk for the child in the event of a return and to give sufficient reasons if they found such claims not to be established.23 At the same time, the Hague Conference has undertaken a range of initiatives to ensure that the Convention also serves its purpose in the context of the changed profile of the taking parent. For example, the Conference has established a global network of liaison judges to promote cooperation between judges to facilitate the safe return of the child. And, as we shall see, the 1996 Hague Child Protection Convention offers additional tools to promote this cooperation. 3 Adoption The crc refers to adoption of children in its article 20, where it ranks adoption under measures of alternative care, which comprise ‘inter alia, foster placement, Kafala of Islamic law, adoption, or if necessary placement in suitable institutions for the care of children’. Article 21 deals specifically with adoption of children and, in particular, with inter-country adoption: States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a.) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b.) Recognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster 21 22 23

ECtHR, Grand Chamber, 26 November 2013 (27853/09). ECtHR, Grand Chamber, 26 November 2013 (27853/09), paras. 104–05. ECtHR, Grand Chamber, 26 November 2013 (27853/09), paras. 92–108. See also the Joint Dissenting Opinion, para. 2, which, on this point, concurred with the majority.

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or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin; (c.) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d.) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (e.) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs. Article 21 of the crc is a more detailed provision than article 11. This can be explained by the previous work of the United Nations in this field, including its unsuccessful efforts to negotiate itself a global convention on inter-country adoption. That those efforts to establish a binding instrument failed, but resulted in a non-binding Declaration,24 had to do with opposition from Member States where Islamic law prevails. In most of these states adoption is not known or not allowed;25 instead, their laws provide for a form of foster care, or kafala. In 1993 the Hague Conference – which at that time included only a few states whose laws were based on Islamic law – succeeded in agreeing on the Convention on Protection of Children and Cooperation in respect of Intercountry Adoption.26 Countries such as Morocco and Egypt received assurances that the kafala would find its place in the next Children’s Convention, the 1996 Convention, which, as we shall see, is indeed what happened. In drafting the Adoption Convention, the Hague Conference built on the experience of the Abduction Convention. It is also based on a system of ­transnational cooperation between Central Authorities. For each and every adoption both the state of origin and the receiving state must give their ‘green 24

The United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (General Assembly Resolution 41/85, of 3 December 1986), referred to in the Preamble of the Hague Adoption Convention. 25 This explains the wording in the chapeau of art. 21 crc: ‘States Parties that recognize and/ or permit the system of adoption.’ 26 See https://www.hcch.net/en/instruments/conventions/full-text/?cid=69; see also the specialised section on the Hague Conference website https://www.hcch.net/en/instru ments/conventions/specialised-sections/intercountry-adoption.

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light’: States Parties have joint responsibility for adoptions made under the Convention (article 17(c)).27 This is a complete change from the situation as it used to be, where each country followed its own course and adoptions made in the country of origin might not be given effect to in the receiving country, with all the risks and legal uncertainty that resulted from this. For example, a child adopted according to the laws of the state of origin, having possibly lost the nationality of that state as a result, might not be admitted to the state where the adoptive parents lived. In contrast, under the Convention both countries must work together, and the transfer of the child to the receiving state is only permitted if the child’s admission to and permanent residence in that state are guaranteed. This cooperative framework increases legal certainty, prevents abuses, and also increases the chances that the adoption will be successful. There are detailed provisions on informed consent to the adoption by the birth parents and the child. No consent during pregnancy is allowed (cf. art. 21(a) crc).28 There are requirements for intermediaries, which are subject to accreditation, their staff having to meet certain criteria, including regarding their remuneration, in the light of the ‘prohibition of improper financial gain’ (cf. art. 21(d) crc).29 Also, the Convention creates an obligation for states to preserve information about the child’s origin, which gives effect to article 8 of the crc on the child’s identity.30 Each State Party should as a matter of priority take measures to enable children to remain in the care of their family of origin, and the Convention supports the idea that a child should preferably find a permanent family in the country of origin. So it reinforces the so-called subsidiarity principle of article 21(b) of the crc: states, in each case, must first consider a family care solution within the country of origin, before agreeing to an international adoption.31 This has given a boost in several countries, such as China, Brazil, Lithuania, the Philippines, and Thailand, to the development of domestic adoption programmes, which illustrates how a treaty that deals with a cross-border problem may have important spill-over effects even within countries. In cooperation with the United Nations High Commissioner for Refugees (unhcr), the Hague Conference adopted a special recommendation to deal 27

28 29 30 31

Art. 17: ‘Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if – […] c) the Central Authorities of both States have agreed that the adoption may proceed.’ Art. 4 (and 15). Arts. 9–12, and 32. Art. 30. Preamble and Art. 4(b) Adoption Convention.

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with the procedures for the international adoption of refugee and other displaced children.32 The purpose is to avoid an ‘adoption rush’ to countries hit by disasters. These guidelines also support article 22 of the crc relating to the protection of refugee children, and have been useful in the context of disasters such as the Asian-African tsunami in 200433 and the Haiti earthquake in January 2010.34 From its inception, the Adoption Convention, which is now in force for all eu Member States plus 68 other states, has had the special attention and support of both the Committee on the Rights of the Child and the United Nations Fund for Children (unicef). The Committee has systematically recommended that crc States Parties also join the Hague Convention, and even apply to the Hague Conference for assistance in its implementation and practical operation. Such post-Convention support is generally given in cooperation with unicef. unicef, like the un Committee, sees the Hague Convention as a crucial tool for the implementation of the crc. Countries as diverse as Vietnam, Cambodia, Romania, Guatemala and Haiti have benefited from this support.35 4

Child Protection

The Adoption Convention deals with adoption of children only. Other forms of alternative care mentioned in article 20 of the crc with cross-border aspects are covered by the 1996 Hague Child Protection Convention.36 It establishes rules on cooperation between states in the case of cross-border foster care and kafala which, in a simplified manner, follow the model of the 1993 Convention.37 But the 1996 Convention on Protection of Children also deals with a range of other issues: parental responsibility, custody and contact, as well as measures of protection – other than foster care and kafala – that are taken if parental responsibilities are unavailable or fail: the protection of unaccompanied minors, including refugee and asylum-seeking children, displaced children or teenage runaways. In this way, the 1996 Convention supports a range of articles of the crc: articles 9 and 10, on personal relations and contact between parents and children; article 12 on the child’s opinion; 18 on parental 32 See http://www.hcch.net/upload/recomm33refugee_en.pdf. 33 See http://www.hcch.net/upload/tsunami_e.pdf. 34 See http://www.hcch.net/index_en.php?act=events.details&year=2010&varevent=183. 35 See https://www.hcch.net/en/instruments/conventions/specialised-sections/intercountry -adoption under The Intercountry Adoption Technical Assistance Programme (icatap). 36 See http://www.hcch.net/index_en.php?act=conventions.text&cid=70. 37 Arts. 33 and 34 1996 Child Protection Convention.

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responsibilities;­19 on protection from abuse; 20 on alternative care; 22 on refugees; and 35 on child trafficking, to mention just a few. For the cross-border issues which arise under those articles – and which the crc because of its wide scope could not possibly resolve – the 1996 Convention determines (a) which authorities or courts may act in international situations, (b) which law applies, (c) when decisions taken in one state should be respected and enforced in other states, and (d) how states may cooperate to protect children. (a) Take the question of when authorities should act. We learned from the war in former Yugoslavia that the authorities in some countries of ex-­Yugoslavia were reluctant to take certain measures of protection, for example providing foster care for a refugee child from another exYugoslavian country, because they felt that the mere presence of that child on their territory was not enough to give them authority to act and that it was up to the national authorities of the child to do so. This, of course, is often not possible in refugee situations.38 The 1996 Convention now puts it beyond doubt that they do have such powers.39 (b) Regarding the applicable law, the rules on parental responsibility of unmarried fathers vary from country to country, but the Convention makes sure that, if parental authority is given under the law of the state where the child lives, then it continues when the child moves to another state, even when the laws of that state would not give the father parental responsibility, or would first require a court order to obtain it.40 (c) Regarding the effect of a foreign decision, if a court is willing to order the return of an abducted child but only combined with a measure of protection – for example, an order prohibiting a father from approaching or molesting mother and child – the 1996 Convention provides not only the jurisdictional basis for such a measure but also ensures respect for that order by the authorities of the state of origin until they decide on the custody issue41 (unfortunately, such a mechanism is lacking in the Brussels ii bis Regulation, mentioned before).42 38

39 40 41 42

See the report of the joint mission of unicef, unhcr and dci in collaboration with the Hague Conference on Private International Law for the protection of the rights of unaccompanied children in former Yugoslavia (1993) at https://www.hcch.net/en/ publications-and-studies/details4/?pid=3916&dtid=28. See art. 6. See art. 16 para. 3. See art. 7 para. 3, and arts. 11, and 23–28. For a proposal to review the Brussels ii a Regulation in this, and some other respects, aligning the Regulation more closely to the 1996 Hague Child Protection Convention, see

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(d) Regarding cooperation, in the case of a teenage runaway, for example, one Central Authority may request the cooperation of another to take measures of protection of that child. The provisions on jurisdiction, the effect of foreign judgments and on cooperation of the aforementioned Brussels ii bis Regulation of the European Union, insofar as they relate to ‘parental responsibility’, have been inspired primarily by the 1996 Convention. In the relations between eu Member States these provisions replace the corresponding rules of the Convention. But the rules on applicable law of the 1996 Convention apply also to the intra-eu relations. Moreover, the Convention applies as a whole in the relations to non-eu States Parties to the Convention, as well as Denmark.43 5

Child Support

Article 27 of the crc deals with another vital problem, the child’s standard of living: 1. 2. 3.

4.

States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others ­responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the

the author’s ‘Report for the European Parliament The Brussels IIa Regulation: Towards a review?’ in Cross-border activities in the eu – Making life easier for citizens 177–207. 43 All eu Member States are bound by the 1996 Convention; 15 more states are parties to the Convention.

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conclusion of such agreements, as well as the making of other appropriate arrangements. Article 27 reminds parents of their primary responsibility for the child’s living conditions. But when a father/husband moves abroad and then stops paying child support or maintenance to his wife, how is he made to pay? That may become quite complicated, if not impossible. Therefore, article 27(4), like article 11 on child abduction and 21 on adoption, provides that in order to secure the recovery of child support in cross-border situations, states must cooperate through existing, or new, Conventions. Already a number of multilateral Conventions exist that deal with different aspects of this issue,44 but in 2007 the Hague Conference adopted a new comprehensive instrument that is far more detailed and powerful: the Hague Child Support Convention.45 Like the other Hague Children’s Conventions, this Convention sets up a system of cooperation between Central Authorities. A parent may apply to the Central Authority in the state where she or lives with the child, to ensure that a decision on child support she has obtained is enforced in the other parent’s state, or to obtain such a decision in that state. Legal aid is provided, and states must make effective measures available to enforce decisions. A separate Protocol provides rules on applicable law. The Child Support Convention has been a major inspiration for the development within the eu of a regulation on maintenance obligations.46 In the relations between eu members, its provisions on recognition and enforcement and cooperation replace those of the 2007 Convention, which apply in the relations with non-eu States Parties to the Convention.47 The 2007 Protocol provides the rules for the law applicable to maintenance obligations in the European Union. 44

Including the Hague Conventions of 1956, 1958 and 1973 on the applicable law and the recognition and enforcement of decisions on maintenance obligations, the 1989 InterAmerican Convention on Child Support Obligations and the 1956 United Nations Convention and the Recovery Abroad of Maintenance. 45 See http://www.hcch.net/index_en.php?act=conventions.text&cid=131. 46 Council Regulation (ec) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement and cooperation in matters relating to maintenance obligations. 47 The eu has joined the 2007 Convention, thereby binding 27 Member States (Denmark not being bound), while six more states are parties to the Convention. Likewise, the eu has joined the 2007 Protocol, thereby binding 25 Member States (Denmark, the United Kingdom and Ireland are not bound).

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6 Conclusion In response to the challenges of globalisation, the crc identifies a range of issues arising from the diversity of legal orders and laws in the world and calling for coordination among and practical cooperation between states. The four Hague Children’s Conventions discussed here offer States Parties to the crc the tools to respond to this call in respect of an important number of these issues: such Conventions are, in fact, complementary to each other, as well as to the crc. In an ideal world, all states would be parties to the crc and the Hague Conventions. In reality, while the crc belongs to the top ten of the world’s most widely ratified multilateral treaties,48 each of the Hague Children’s Conventions has less than a hundred States Parties.49 On the other hand, the United States, which is not a party to the crc, has joined the Hague Child Abduction and Adoption Conventions and has already signed the 1996 and 2007 Conventions. Because the crc and the Hague Conventions are complementary in so many respects, it is crucial that the Committee on the Rights of the Child, unicef, the Hague Conference and all other interested parties, including ngos, take an integrated approach, see these instruments as a tool package, and intensify their efforts to promote the acceptance, implementation and operation of the crc and the Hague Conventions. The Hague Conference has always been open to such cooperation; in fact, as a small intergovernmental organisation, it depends to a considerable extent on such cooperation for its work. This also applies to its efforts to ensure that the Hague Conventions do really work in practice as they are expected to in theory, namely to the post-Convention services, in the development of which the Conference has been a pioneer. This applies as well to its work in new fields. Here mention should be made of the current important work on transnational parentage/surrogacy carried out by the Hague Conference in response to the new challenge of globalisation and technology. Thousands of children are already born through this specific mode of reproduction and the figures continue to rise. Laws either vary from being very liberal to very strict, or simply fail to provide any guidelines. On the global level this leads to new legal issues and risks, not least for the children born, whose status may become quite uncertain. Of course, this directly concerns, again, their right to an identity as guaranteed by article 8 of the crc. The Hague 48 49

One hundred and ninety six by 20 January 2016. Hague Child Abduction Convention 93; Hague Adoption Convention 96; Hague Child Protection Convention 43; Hague Child Support Convention 33 (including the European Union minus Denmark); Maintenance Protocol: 28 (20 January 2016).

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Conference’s Permanent Bureau (secretariat) is working hard to examine the possibilities for an international solution, and very much invites the cooperation of governments, international organisations, and individuals in its efforts to protect the rights of the adults involved, including the surrogate mother, but above all the rights of children.50 Bibliography Books

Baylis J, Smith S & Owens P (eds) The Globalization of World Politics: An Introduction to International Relations (2014) Oxford: Oxford University Press. Schuz R The Hague Child Abduction Convention: A Critical Analysis (2013) Oxford: Hart Publishing.

Reports

Lowe N A Statistical Analysis of Applications made in 2008 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Part 1, Global Report, available at http://www.hcch.net/upload/wop/abduct2011pd08ae .pdf (­accessed 23 February 2016). Van Loon H ‘Report for the European Parliament: The Brussels IIa Regulation: Towards a review?’ in Cross-Border Activities in the EU – Making Life Easier for Citizens 177–207, available at http://www.europarl.europa.eu/RegData/etudes/STUD/2015/510003/ IPOL_STU(2015)510003_EN.pdf (accessed 23 February 2016).

Miscellaneous

Doek JE ‘Letter to the Council of Europe Committee of Experts on Children and Families (CS-EF)’ Dec. 8 and 9, 2004, available at http://www.google.nl/url?sa=t&rct=j&q =&esrc=s&source=web&cd=1&ved=0CCQQFjAA&url=http%3A%2F%2Fwww .jaapedoek.nl%2Fpublications%2Fkeynotes%2Fkeynote_319.doc&ei=Lc6_VNa-CN LfaqGPgeAO&usg=AFQjCNGXNaVlFjhTnZ9a8lVTCRLVEPu2wg (accessed 23 February 2016).

50

See the special section on the website of the Hague Conference dealing with the private international law issues surrounding the status of children, including issues arising from international surrogacy arrangements, available at https://www.hcch.net/en/projects/ legislative-projects/parentage-surrogacy.

chapter 4

Legal Challenges and Strategies for Combating Online Sexual Violence against Children: Making Children’s Rights Future-Proof Corinne Dettmeijer-Vermeulen Abstract This chapter is about the legal response to changes occurring in society and technology when it comes to child pornography. Will legal instruments suffice to combat online sexual violence against children? To answer this question, some important milestones in the evolution of legal strategies for combating child pornography in the United States and the Netherlands are highlighted. Two cases are discussed: one in the Netherlands and one in the us. They illustrate how legal instruments tend to be adopted only after particular events have shown the need for them. In its conclusion, the chapter considers some new forms of sexual violence against children and the legal dilemmas they pose. The chapter argues that in order to truly protect children, legislation should anticipate developments in technology and in the phenomenon of online sexual violence.

1 Introduction Child pornography is inseparable from sexual violence against children. It was one of the first forms of online sexual abuse as we know it. In this chapter the emphasis is on the future. In the light of the changes occurring in society and technology, will legal instruments suffice to combat online sexual violence against children? To answer this question, we first need to take a trip down memory lane to understand how views regarding online sexual violence against children have changed. To that end, I will highlight some important milestones in the evolution of the legal strategies for combating child pornography in the United States (us) and the Netherlands. This brief overview is by no means exhaustive but hopefully will illustrate the criminalisation of child pornography. I find it shocking that the protection of children against online sexual violence is such a relatively recent development. In the Netherlands, for example, child pornography was not a crime until 1986.

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This overview will further elaborate on two recent cases with regard to child pornography. These cases illustrate how legal instruments tend to be adopted only after particular events have shown the need for them. In its conclusion, the chapter considers some new forms of sexual violence against children and the legal dilemmas they pose. Sometimes these forms of sexual violence evaporate because of the speed with which technology advances, and sometimes they continue. Overall, the chapter argues that in order truly to protect children against online sexual violence, legislation should anticipate developments in technology and in the phenomenon of online sexual violence. 2

Milestones in the History of Child Pornography

Sexual abuse has been around for many centuries, but the invention of photography in 1839 was a decisive factor in the emergence of images of child abuse. The new technology gave people the opportunity to make recordings of sexual abuse. However, it was not until the 1960s and 1970s that child pornography started to become a major issue in response to two simultaneous developments. First, advances in technology resulted in more affordable, widely available and easyto-use cameras – it was now a realistic option for most people to make recordings. Secondly, these decades were notorious for their liberal sexual morality. Both of the developments contributed to a large increase in child pornography in the mid-twentieth century. In 1977, the United States Congress enacted the Protection of Children against Sexual Exploitation Act,1 including Chapter 110 of Title 18, entitled Sexual Exploitation and Other Abuse of Children. Sections 2251 and 2252 of the 1977 Act banned the use of interstate or foreign commerce for the production, distribution and possession of child pornography. Five years later, in New York v Ferber,2 the us Supreme Court found a state’s ban on the distribution of child pornography to be constitutional and affirmed that it did not constitute a violation of the First Amendment. The Court exhibited considerable insight into the particular nature of the harm caused by child pornography. The following citation from this 1982 ruling has lost none of its relevance when applied to modern technologies: 1 Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95–225, 92 Stat. 7 (1978). 2 New York v Ferber, 458 u.s. 747 (1982).

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First, the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. Eight years later, in 1990, state legislation banning the possession of child pornography was also found to be in conformity with the First Amendment. The Supreme Court stated the following in Osborne v Ohio:3 First, as Ferber recognized, the materials produced by child pornographers permanently record the victim’s abuse. The pornography’s continued existence causes the child victims continuing harm by haunting the children in years to come. The State’s ban on possession and viewing encourages the possessors of these materials to destroy them. Second, encouraging the destruction of these materials is also desirable because evidence suggests that pedophiles use child pornography to seduce other children into sexual activity. Given the gravity of the State’s interests in this context, we find that Ohio may constitutionally proscribe the possession and viewing of child pornography. In 1984/1986, the us Senate Permanent Subcommittee on Investigations had expressed its concern about the position adopted by the Netherlands in the international distribution of child pornography. Some months earlier, the ­Amsterdam police force had seized all of the materials involving child abuse from sex shops. However, it was not until 1986 that the Dutch Parliament enacted article 240b of the Dutch Criminal Code, thereby criminalising child ­pornography in a separate provision for the first time. The original article 240b covered production, distribution, and possession with the intent to distribute. Possession for personal use was not made a criminal offence until 1996, when article 240b was amended to make the intent with which a person possesses child pornography no longer relevant. The amendment also increased the ­maximum sentence for all offences covered by the article from a mere three months to four years’ imprisonment, which is of course still very mild compared with sentences in the us. The article provides for slightly higher 3 Osborne v Ohio, 495 u.s. 103 (1990).

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­maximum sentences where there are aggravating circumstances or if the offender makes a habit or profession out of distributing or possessing child pornography. In 1989, the United Nations General Assembly unanimously adopted the un Convention on the Rights of the Child (crc),4 which broke the record for the largest number of signatories to a treaty on the day it opened for signature. This Convention was the first binding treaty on children’s rights and has become the most widely ratified human rights treaty to date. Article 34(c) of the crc contains an obligation for States Parties to prevent the exploitative use of children in pornographic performances and materials by all appropriate measures. The Convention does not explicitly mention criminal or penal law. Parties still have some discretion in the choice of measures they deemed appropriate for the prevention of child pornography. The first explicit criminalisation of child pornography in international law came just 15 years ago with the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography,5 which obliges States Parties to make the production, distribution and possession of child pornography a criminal offence. More than 160 states have now signed up to the Protocol and, unlike the Convention itself, it has been ratified by the us. New technologies, most notably the Internet, have clearly ensured that child pornography occupies a much higher place on the international agenda. The definition of child pornography in the Optional Protocol is very broad and encompasses virtual child pornography as well. In 2001, the Council of Europe, an intergovernmental organisation, adopted the Convention on Cybercrime.6 While the treaty also deals with other forms of criminality related to new technologies, article 9 is devoted to child pornography. This Convention criminalises conduct already covered by the Optional Protocol, but does so explicitly when it takes place ‘through a computer system’. A great deal of emphasis is placed on the digital aspect of child pornography, as is also apparent from the more explicit ban on virtual child pornography in paragraph (2)(c) of article 9.

4 Convention on the Rights of the Child, opened for signature Nov. 20, 1989, 1577 u.n.t.s. 5 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, opened for signature May 25, 2000, t.i.a.s. No. 13,095, 2171 u.n.t.s. 227. 6 Convention on Cybercrime, opened for signature Nov. 23, 2001, t.i.a.s. No. 13,174, c.e.t.s. No. 185.

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The Phenomenon of Child Pornography

The framing of child pornography as a cybercrime, or a problem related specifically to digital technology, leads us to a reflection on the phenomenon of child pornography.7 Who are the perpetrators and victims of child pornography? But first, what is the role played by technology? It is important to remember that technology is not the cause of child sexual abuse; it is at most a catalyst. Children were being sexually abused long before the advent of computers and the Internet, or even of the camera in the nineteenth century. Sexual violence against children also occurs in other environments. One of them is the church: in recent years it has come to light how the Catholic Church has systematically concealed and condoned sexual abuse of children by clergy. Another domain, one on which I have published a report,8 is the phenomenon of sex offenders travelling to countries like Thailand or Brazil to abuse children there, which is referred to as child-sex tourism. Whether they travel for work, on holiday or to settle abroad permanently (so-called ‘sexpats’), we have a responsibility to protect foreign children from our sex offenders. Last but not least, the majority of sexual violence against children still occurs in the domestic setting, being committed by relatives, acquaintances, neighbours and other individuals known to the victim.9 Technology is neither good nor bad, nor is it neutral. It is a given. However, it cannot be denied that new technologies have had an impact on sexual violence against children in general, and child pornography in particular. Think of the proliferation of high-resolution video cameras, even inside our mobile phones, which are constantly connected to the Internet. The Web allows unlimited, instant and global exchange of audiovisual material, which is virtually impossible to destroy or remove permanently once it has been uploaded, particularly since every download creates a reproduction of the original file. Child pornography therefore prolongs sexual abuse in both time and space, the result being continued victimisation. Teenagers who may wish to send sexually explicit pictures to their lovers – a phenomenon which has been labeled ‘sexting’ – can find that the pictures end up on thousands of computers worldwide if they 7 For more information, see National Rapporteur on Trafficking in Human Beings (2011) Child Pornography: First Report of the Dutch National Rapporteur. 8 National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children (2013) Barriers against Child Sex Tourism: Summary Report. 9 National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children (2014) On Solid Ground. Tackling Sexual Violence against Children in the Netherlands, para. 4.2.2.2.

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are shared online.10 Whereas in the past child pornography was consumed secretly and individually, new technologies have paved the way for peer-to-peer communities whose members exchange ideas, views and material online. In this way, perpetrators reaffirm each other and form groups acting collectively. These developments pose significant challenges for the existing legal system. I want to stress, however, that new media are not just a menace. These same technologies can also be used to combat sexual violence against children. Clearly, child pornography on the Internet provides investigators with a lot of evidence. The images furnish proof of the physical abuse of the child involved in the production of the material. Furthermore, many arrests have been made following the discovery of online networks: catching one offender on the Web will often lead to the apprehension of many others. Social media can also be used to educate and inform children about the dangers of sexual violence. Technology is not the cause of child sexual abuse, but merely the platform used by perpetrators. And there are many different types of perpetrator. We need to make a distinction between pedophiles and perpetrators (or, as we call them in the Netherlands, pedosexuals). Pedophilia is a sexual preference for children, but not all pedophiles act on this inclination. Conversely, not all perpetrators have a sexual preference for children. Only ‘preferential perpetrators’ fit both categories. ‘Situational perpetrators’ use children as substitutes for appropriate sexual partners, for example because they are sexually frustrated. Offenders who commit incest usually fall into this category – the ‘situational aspect’ is often dependency in a relationship. On the other hand, there are non-offending pedophiles who actively seek help to cope with their inclination without harming children.11 It is therefore important to utilise a public-health model that goes beyond repression and also takes prevention and protection into account. Helplines such as Stop it Now! offer assistance to pedophiles in this category in an attempt to prevent them from committing sex crimes. Public opinion often labels all offenders who commit sexual violence against children as pedophiles, but research has shown that only 20 per cent of suspects who undergo a personality assessment are found to have deviant sexual preferences, including preferences other than paedophilia; in other words, 80 per cent do not have deviant sexual preferences. Even the figure of 20 per 10 11

National Rapporteur on Trafficking in Human Beings (2011) Child Pornography: First ­ eport of the Dutch National Rapporteur 77. R National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children (2014) On Solid Ground. Tackling Sexual Violence against Children in the Netherlands, para. 8.2.1.1.

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cent is probably not an accurate measure, since a public prosecutor is more likely to request a personality assessment if a suspect displays signs of sexually deviant interests.12 Broadly speaking, the message conveyed by these figures is that pedophiles are a minority among offenders who commit sex crimes involving children. Furthermore, my recent study showed that 2 per cent of suspects are female, 25 are minors, 27 are (slightly) mentally challenged, and 50 were already known to the police or prosecution service.13 Not only do perpetrators have different characteristics, the manner in which they commit an offence also varies. The diversity among online child pornography offenders can be represented as a pyramid.14 At the bottom of the pyramid are those who simply watch pornography, technophobe beginners who may use Google to search for images of abuse and who usually only download child pornography. The second tier, open traders, comprises people who are slightly more adept in the use of technology and, for example, make use of peer-to-peer networks, thereby also distributing the material but still doing so in largely unsecured environments. At the next level are closed traders, who are similar to open traders but take various security measures to avoid being discovered. They use private online communities to exchange child pornography. At the top of the pyramid are individuals with considerable computer expertise, who know how to use secure environments such as Tor networks and encryption keys to hide child pornography. Communities of experts often require new members to submit material they have produced themselves before they are trusted enough to be allowed to join the group.15 The third component of child pornography, besides technology and perpetrators, is of course the children, or the victims. The majority of victims of child pornography are female. In 2012, 76 per cent of the reports of child pornography made to the Dutch Hotline combating Child Pornography on the Internet (Meldpunt Kinderporno) concerned images of girls, 15 per cent images of boys, 7 per cent images of both, and in 2 per cent of cases the gender could not be determined. Most child pornography depicts pre-adolescent children between 12

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National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children (2014) On Solid Ground: Tackling Sexual Violence against Children in the Netherlands, para. 2.5. National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children (2014) On Solid Ground: Tackling Sexual Violence against Children in the Netherlands, para. 2.5. Moran M, Online Child Abuse Material Offenders: Are We Assigning Law Enforcement Expertise Appropriately? (2010). National Rapporteur on Trafficking in Human Beings (2011) Child Pornography: First Report of the Dutch National Rapporteur 74.

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the ages of three and 12: in 2012, 79 per cent of the victims fell into this category, 13 per cent were between 13 and 18 years of age, and 6 per cent were below the age of two.16 Once victims of child pornography realise that the images of abuse will remain accessible on the Internet, possibly so for the rest of their lives, they can suffer significant additional psychological damage. In a German survey, all of the professionals who were interviewed believed that awareness of the existence of material depicting the sexual abuse would always result in the victim experiencing additional psychological stress.17 Furthermore, the study revealed that victims are afraid that individuals who view the child abuse material in which they feature will believe that they performed or experienced the sexual acts voluntarily. The fact that many perpetrators coerce their victims into smiling whilst the recordings are being produced serves to reinforce that anxiety.18 The study referred to effects such as low self-esteem, a sense of powerlessness and fear – including the not irrational fear of being recognised. To summarise, it is much harder for victims of child pornography to find closure. Victims have started to receive more attention in the legal instruments as well. The Council of Europe adapted its approach to child pornography in 2007.19 Unlike the Convention on Cybercrime, the Lanzarote Convention devotes considerable attention to protection of and assistance for child victims. At the same time, new developments in the field of technology were also addressed in the Convention, which covers new phenomena such as online grooming and the corruption of minors. A final point is that possession is no longer an adequate term for the offence, since many viewers do not download material any more – they simply access it online, in the cloud. In the Lanzarote Convention, the definition of offences relating to child pornography has therefore been expanded to include ‘knowingly obtaining access’. This amendment was implemented in article 240b of the Dutch Criminal Code in 2010 and is also included in the relevant European Union Directive of 2011. 16

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National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children (2014) On Solid Ground: Tackling Sexual Violence against Children in the Netherlands, para. 2.3. Von Weiler J, Haardt-Becker A & Schulte S ‘Care and treatment of child-victims of child pornographic exploitation (cpe) in Germany’ (2010) 16(2) Journal of Sexual Aggression 211–22. Taylor M & Quayle E Child Pornography. An Internet Crime (2003) 22; Nyman A Abused Online (2008) 37; Muir D Violence in Cyberspace (2005) 41. Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse (Lanzarote Convention), Lanzarote, 25 October 2007.

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The Cases of Amy Unknown and Robert M.

The case of Amy Unknown and the case of Robert M. are illustrative of the legal challenges posed by child pornography. 4.1 Amy Unknown Amy had been abused by her uncle when she was nine years old. He had made recordings of the abuse and the material became very popular among child pornographers when it was distributed online. Whenever an offender is caught with the images of her, Amy receives a crime victim notice from the us Department of Justice. Amy has received many crime victim notices because of the popularity of the images produced by her uncle among collectors of child pornography. Whenever she receives such a notice, Amy’s lawyer files a claim for restitution of the full amount of her losses, under 18 u.s.c. Section 2259 (the Protection of Children against Sexual Exploitation Act). The total damages have been estimated at 3.4 million dollars. Amy has so far been awarded about half of that sum – in more than 150 different cases. She receives a small portion every time, the sum being calculated at the discretion of the court. One of the persons who was caught with pictures of Amy was Paroline. The Supreme Court had to decide the following question in the case of Paroline v United States: ‘What, if any, causal relationship or nexus between the defendant’s conduct and the victim’s harm or damages must the Government or the victim establish in order to recover restitution under 18 u.s.c. 2259?’ My First Report on Child Pornography20 made its way to the us and led to a request by an attorney for a contribution to this case by way of an amicus curiae brief.21 The case boils down to the following question: do victims have a right to restitution from persons convicted of possession? I will now try to provide the tools to formulate an answer to that question. There are two ways of approaching this question: proximate cause or reasonable attribution. A proximate cause is ‘an act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred’. The most common method used to assess proximate cause is the ‘but-for test’. Applied to this case, the question would be: ‘But for Paroline’s conduct, would Amy have sustained the same damage?’ In the ­context of child pornography, possession by a complete stranger who downloaded the images from the Internet, this seems to be a no-brainer: Paroline’s 20

National Rapporteur on Trafficking in Human Beings (2011) Child Pornography: First Report of the Dutch National Rapporteur. 21 See http://www.dutchrapporteur.nl/current/news/archief/20131127-rapporteur-contrib utes-to-supreme-court-case.aspx (accessed 19 November 2015).

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possession cannot be construed as the condition sine qua non for Amy’s damage. She would not even have known about Paroline if the Department of Justice had not sent her a crime victim notice. The principle of proximate cause is therefore inadequate to fathom the causal relationship between possession of child pornography and the additional harm it causes to the victim. It covers only the production of the material and ignores how persons convicted of distributing and possessing it collectively contribute to the damage. In practical terms, it is unrealistic to expect the producer alone to make restitution of the full amount of the victim’s losses – usd 3.4 million in Amy’s case. In my opinion, it is only reasonable to attribute Amy’s damage to Paroline’s conduct if it is coupled with joint and several liability of all the persons convicted of possession.22 As I argued in my amicus brief, the Supreme Court decided that there is a causal relationship between possession of the images and the damage. A typical reaction was that of Justice Sotomayor, one of the nine judges: ‘Are you trying to tell me that when one person views these images he is liable for damages, and that when a thousand persons view these images nobody is liable? You’ve got to be kidding me!’ However, the Supreme Court decided against applying reasonable attribution. Instead it ruled that a court should order restitution in an amount that comports with the defendant’s relative role in the causal process underlying the victim’s general losses. This case led to the drafting of the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014. This aim of this bill is to create a practical process – based on the unique nature of harm caused by child pornography – that both places the burden of proof on defendants, where it belongs, and provides for actual and timely restitution for victims.23 The bill provides that if a victim was harmed by multiple individuals, including as yet unidentified persons, a judge can order restitution by an individual defendant in two ways: the full amount of the victim’s losses, or, if less than the full amount, at least usd 250,000 for production, usd 150,000 for distribution, or usd 25,000 for possession. When this bill becomes law, multiple defendants will be jointly and severally liable.24

22 Dettmeijer-Vermeulen ce & Van Krimpen L ‘Schadevergoeding voor bezit van kinderpornografie: Juridische mogelijkheden en praktische obstakels’ (2014) tpws 26. 23 See http://www.hatch.senate.gov/public/_cache/files/457b1bfb-0c61-4325-ba97-119d07182904/ Amy%20and%20Vicky%20Act%20one-pager.pdf (accessed 19 November 2015). 24 I recommend reading the entries of James R. Marsh on this topic, available at http://www .huffingtonpost.com/james-r-marsh/ (accessed 19 November 2015).

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4.2 Robert M. The case of Robert M. deeply disturbed Dutch society and led to many legal responses, which will be discussed briefly here. The case started when us authorities arrested an American for possession of child pornography. When law enforcement officers in Boston posted a picture of an abused boy with a toy bunny on an international database, a detective with the Dutch national police identified the rabbit as Miffy, a well-known character in a Dutch children’s book. This led to the realisation that it was highly probable that the material had been produced in the Netherlands. The police arrested Robert M. when the victim’s grandfather, while watching the Dutch equivalent of America’s Most Wanted, recognised the sweater the boy was wearing. A native Latvian, Robert M. had been working in a daycare centre in Amsterdam where he had selected his very young victims, who ranged in age from 19 days to four years. In 2013, he was convicted of producing child pornography and abusing as many as 67 children (although he proudly confessed to abusing more than 80), and he and his partner were ordered to pay €500 in compensation to each victim who was depicted in a picture and had filed a claim.25 The amount of the compensation they were ordered to pay to the victims was based on violation of article 8 of the European Convention on Human Rights – the right to private life or privacy. The Supreme Court of the Netherlands confirmed the decision of the Amsterdam Court of Appeal, which had sentenced Robert M. to 19 years’ imprisonment, after which he was to be detained under an entrustment order (tbs).26 This measure boils down to custodial psychiatric care and treatment, which can be extended by periods of two years for the rest of his life. The Robert M. case is a landmark case for several reasons, first and foremost because the sheer number of victims and their young age are so shocking. However, secondly, from a legal perspective the case also featured some groundbreaking and controversial procedural aspects. At the time Dutch law did not grant parents the right to speak on behalf of child victims. M. had chosen extremely young victims, so they would not be able to testify against him. Society, and most politicians, considered it unacceptable that parents could not speak at the trial, so new legislation was proposed that would introduce a parental right to speak. Parents now have had the right to speak at trial (under certain circumstances) since 1 September 2012. Additionally, legislation on emotional loss and care costs is currently pending, which will make it possible, under certain circumstances, for parents to 25 26

Amsterdam Court of Appeal 26 April 2014, ECLI:NL:GHAMS:2013:BZ8885. Supreme Court of the Netherlands 19 September 2014, ECLI:NL:HR:2014:2668.

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receive compensation for the emotional and material damage they suffer in relation to a crime committed against their children. In short, this case illustrates how legal instruments tend be adopted only after particular events have shown the need for them. Legislation is usually a (belated) response to changes that have already occurred. This dynamic is particularly evident with the rapid advances being made in technology. 5

New Forms of Online Sexual Violence

Some new forms of online sexual violence are starting to appear on the radar: • Online grooming. We are witnessing an increase in cases where grooming takes place on social media and via webcams. • Sextortion. While sexting is not necessarily problematic, the sexual pictures created and disseminated by minors among themselves can also be used for blackmail and to coerce teenagers into prostitution, for example. • Voyeurism. There was a case featuring a 19-year-old hacker, who used Remote Access Tools to switch on webcams. This goes beyond mere voyeurism: he recorded several teenagers masturbating in front of their webcams. They had no idea that anyone was spying on them. Without their realising it, he was producing child pornography with these unsuspecting teenagers performing sexual acts in the privacy of their own room.27 • Webcam child-sex tourism. A related phenomenon that has been attracting attention lately is webcam child-sex tourism, where children are induced to give sexual performances in front of a webcam and offenders on the other side of the world pay them to do so. • Sex chatting with minors. Even a situation that goes no further than sexually explicit chatting might already constitute a serious intrusion in the personal world of the child. The child is drawn into a world that he or she is not ready for. Although repeated and intrusive sexual chatting and being approached online can harm the child, it is not a criminal offence as long as it does not result in a proposal for an actual meeting. • Secret filming in dressing rooms. Are the current legal instruments sufficient to protect children from these new forms of sexual violence? 27

Rotterdam District Court 4 September 2014, ECLI:NL:RBROT:2014:7379.

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Additional Questions

There are still many questions that remain unanswered. Should the police approach victims many years after the fact, even if this will gravely exacerbate the harm they have already suffered? How about the hundreds of crime victim notices received by victims like Amy? What is the relationship between virtual child pornography and victim protection: does the former prevent actual physical abuse of children or does the virtual material lead to more physical sexual violence?28 Should parents be treated as victims in their own right, rather than as speaking ‘on behalf of child victims’? Furthermore, should the police use decoys in Internet stings to trace groomers? How should the law address new issues like sexting and sextortion, voyeurism through Remote Access Tools, and online grooming? Is the mandatory key disclosure an effective tool for prosecuting suspects in child pornography cases? How can it be reconciled with the right to a fair trial if a suspect is coerced into incriminating himself? And, finally, the central question: will legal instruments suffice to combat online sexual violence against children? 7 Conclusion It is essential for the law to evolve in the light of changes occurring in society and technology. The law inevitably often lags behind reality. There is no reason to assume this will change any time soon, but there is certainly no harm in detecting new developments in a timely fashion and anticipating possible legal strategies. At the end of the day, it is the best way of affirming this conclusion which everyone will endorse: No matter where or when, every child has a right to protection, against any type of sexual violence, analogue or digital. Bibliography Books

Taylor M & Quayle E Child Pornography: An Internet Crime (2003) East Sussex: Brunner-Routledge.

28

For some interesting observations on virtual child pornography, see National Rapporteur on Trafficking in Human Beings (2011). Child Pornography: First report of the Dutch National Rapporteur, para. 1.4.1.1.

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Moran M Online Child Abuse Material Offenders: Are We Assigning Law Enforcement Expertise Appropriately? (2010) Dublin: University College Dublin.



Journal Articles

Dettmeijer-Vermeulen CE & Van Krimpen L ‘Schadevergoeding voor bezit van kinderpornografie: Juridische mogelijkheden en praktische obstakels’ (2014) TPWS. Von Weiler J, Haardt-Becker A & Schulte S ‘Care and treatment of child-victims of child pornographic exploitation (CPE) in Germany’ (2010) 16(2) Journal of Sexual Aggression 211–22.

Reports

National Rapporteur on Trafficking in Human Beings Child Pornography: First Report of the Dutch National Rapporteur (2011) The Hague: BNRM. National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children Barriers against Child Sex Tourism: Summary Report (2013) The Hague. National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children On Solid Ground: Tackling Sexual Violence against Children in the Netherlands (2014) The Hague.

Legislation

Convention on Cybercrime, opened for signature Nov. 23, 2001, T.I.A.S. No. 13,174, C.E.T.S. No. 185. Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse (Lanzarote Convention), Lanzarote, 25 October 2007. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, opened for signature May 25, 2000, T.I.A.S. No. 13,095, 2171 U.N.T.S. 227. Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95–225, 92 Stat. 7 (1978).

Cases

New York v Ferber, 458 U.S. 747 (1982). Osborne v Ohio, 495 U.S. 103 (1990).

Miscellaneous

Muir D Violence against Children in Cyberspace (2005) Bangkok: ECPAT International. Nyman A Abused Online (2008) Östergötland (Sweden): BUP Elefanten (Child and ­Adolescent Psychiatric Unit) & the County Council of Östergötland.

chapter 5

Are ‘Best Interests’ a Pillar or a Problem for Implementing the Human Rights of Children? Nigel Cantwell Abstract The basically paternalistic and charitable notion of ‘best interests’ became inextricably associated with children’s issues in an era when children still had few explicitly recognised human rights. At that time, it therefore served as the principal standard, however vague, to be met for justifying actions concerning children. But now that the crc codifies children’s human rights, how can ‘best interests’ be qualified as a ‘fundamental value’ and General Principle for implementing that treaty when, in contrast, the notion is unknown in relation to promoting and protecting the human rights of any adult? It is recognised that, in certain well-defined circumstances, recourse to the notion of ‘best interests’ can be useful for reaching decisions on issues involving children. The main contention of this chapter, however, is that the pre-eminent role now assigned to the ‘best interests of the child’ in a human rights context was never thought through, is mistaken, and is even counter-productive for efforts to ensure that children’s issues are henceforth broached from a human rights standpoint. In other words, ‘best interests’ may have become more of a problem than a pillar for implementing the crc.

1 Introduction Since the drafting and adoption of the Convention on the Rights of the Child (crc), it appears to have become an increasingly unassailable – and indeed generally unquestioned – dogma that the child’s best interests are an essential consideration in implementing children’s human rights. The latest, and probably most significant, endorsement of this view comes in the 2013 General Comment of the Committee on the Rights of the Child (hereinafter ‘the Committee’), which qualifies the notion as expressing ‘one of the fundamental values of the Convention’.1 This chapter does not dispute that in certain well-defined circumstances the spirit embodied in the notion of ‘best interests’ can be useful for ­reaching 1 General Comment No. 14, para. 1.

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decisions on issues involving children, whether individually or as a group. That being said, it contends that the prominent role now assigned to the ‘best interests of the child’ is mistaken, even dangerous, in a context where children have human rights. The chapter argues that the implications of applying the concept in a way that is strictly interpreted according to the letter of the crc were not thought through. As a result, we are now unwarrantedly duty-bound to take systematic account of a basically paternalistic and charitable notion in the implementation of the human rights of children. The constant reference to ‘best interests’ detracts from the most essential message conveyed by the crc: children have human rights. 2

How did Best Interests become a ‘Pillar’ of the crc?

2.1 The Context and Drafting of the crc In international human rights law, the notion of ‘best interests’ is unique to children’s issues, and this fact alone should inspire our special curiosity. The few references to (best) interests in human rights treaties concern only children and relate to very specific issues – this includes the Convention on the Rights of Persons with Disabilities (adopted in 2006 and thus well after the crc), where the notion is studiously avoided save in regard to children. Likewise, the only private international law conventions that mention best interests are those which deal with questions relating to children, and the notion is quite simply absent from international humanitarian and refugee law. While the Committee is correct, of course, in stating that the ‘concept of the child’s best interests […] predates the Convention’,2 its assertion that this concept ‘was already enshrined in the 1959 Declaration of the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women [cedaw]’3 is misleading in the extreme. The 1959 Declaration mentions it in just two specific contexts. First, the best interests of the child are to be ‘the paramount consideration’ in the ‘enactment of laws’ enabling the child ‘to develop physically, mentally, morally, spiritually and socially’ (Principle 2). Secondly, parents and others responsible for the child’s upbringing are enjoined to take his or her best interests as ‘the guiding principle’ (Principle 7). These mentions are hardly equivalent to ‘enshrining’ best interests as a fundamental approach to all matters concerning children’s rights.

2 General Comment No. 14, para. 2. 3 General Comment No. 14, para. 2.

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The Committee’s reference to cedaw is arguably even more tendentious in the context of its attempt to demonstrate that the ‘best interests’ of the child had thereby been ‘enshrined’. According to cedaw, the ‘interest(s) of the children’ are to be ‘primordial’ in the joint exercise of parental responsibility (art. 5(b)) and ‘paramount’ in all matters concerning parental rights and responsibilities when decisions regarding their children are to be made (art. 16(d) and (f)). There is no mention of ‘best interests’ and, above all, the only situations considered relate to the family. In no way can this be construed as a consecration of the concept of best interests in relation to children’s overall human rights. Poland’s initial proposal for a convention in 1978 was based on the 1959 Declaration, and therefore reflected the latter’s restricted perspective of ‘best interests’ as being the concern of law-makers and primary caregivers alone. The proposed draft, however, was deemed inadequate as a basis for developing the treaty, so Poland submitted a substantially revised version the following year. This new text foresaw a vastly broadened sphere of influence of best interests, which were suddenly to be ‘the paramount consideration’ in ‘all actions concerning children, whether undertaken by their parents, guardians, social or state institutions, and in particular by courts of law and administrative authorities’.4 While this formulation was amended during the drafting – with, notably, reference to parents and guardians being moved elsewhere (to article 18), legislators reinstated in the list of actors, and ‘the paramount’ downgraded to ‘a primary’ (art. 3.1) – the logic and implications of this major shift in approach were never explained or discussed. Most importantly and intriguingly, there was never any review of the potential implications of giving such unprecedented roles to ‘best interests’ in the context of a human rights treaty. 2.2 The Committee on the Rights of the Child Once the crc had come into effect in September 1990, the Committee on the Rights of the Child was established and elected, with one of its first tasks being to draw up the list of issues to be addressed by States Parties in their initial reports on implementation. The Committee decided to ask States Parties, in the overall context of these reports, to describe their compliance in four spheres it saw as fundamental, overarching requirements for implementation: non-discrimination; the right to life, survival and development; the right to be heard; and guarantees that best interests will be a primary consideration in decision-making. It designated these spheres as being, in its view, ‘General 4 Note verbale dated 5 October 1979, un Doc E/CN.4/1349.

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Principles’ of the crc, and retained them as essential elements to be covered in States’ subsequent periodic reports. The unilateral decision to elevate ‘best interests of the child’ to that special status5 thus stems essentially from drawing up a questionnaire for States Parties. From there, indeed, it took very little time for ‘best interests’ to become, to all intents and purposes, universally and unquestioningly accepted as a ‘pillar’ of the crc, vital ‘for interpreting and implementing all the rights of the child’.6 Given the singular importance the Committee attached from the outset to the notion of best interests, and coupled in particular with the notion being necessarily broad, flexible and adaptable to cultural and socioeconomic variance,7 it might have been expected that the Committee would prioritise the preparation of interpretative guidance on the practical application of the principle. Clearly this was all the more necessary in that it is uniquely pertinent to children’s issues in a human rights framework and in view of the fact that there was consequently no global ‘jurisprudence’ on the subject on which to rely. In fact, it took more than 20 years for the Committee’s interpretive General Comment to be issued, and this can be seen as indicative of the problematic nature of the question. This document’s attempt to settle the conceptual and operational quandaries posed by the best-interests principle is based, however, on an uncritical reading of the crc as formulated in article 3(1). It is therefore grounded in the sacrosanct stance that the child’s best interests are a fundamental value of the crc, comprising ‘a right, a principle and a rule of procedure’8 to be operationalised at all levels and in all circumstances. By taking that approach, the Committee lost a golden opportunity to delve deeper into the rationale behind invoking ‘best interests’ in relation to the human rights of children alone and to determine precisely how and when recourse to that notion actually contributes significantly to safeguarding their rights. 3

How did Best Interests become a ‘Problem’?

The notion of ‘the best interests of the child’ is a product of an era prior to children being explicitly granted human rights. Indeed, the notion was ­essentially 5 It is worth noting that no other treaty body has ever sought to give such prominence to specific provisions of an international instrument. 6 General Comment No. 14, para. 1. 7 See Zermatten J (2011) ‘The best interests of the child: Literal analysis, function and implementation’ Sion: Institut international des droits de l’enfant 16. 8 General Comment No. 14, para. 46.

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designed to constitute a standard – albeit a somewhat imprecise one – for decision-making on initiatives to be taken in regard to children precisely in the absence of such rights. Without a human rights framework, determining best interests was dependent as much on prevailing beliefs and attitudes (largely paternalistic and charitable) as on levels of knowledge. ‘Best interests’ have consequently been invoked in the past in order to justify a wide range of actions, many of which have involved measures that would now be qualified as gross violations of human rights: forced adoptions and forced migration, for example, during several decades in the mid-twentieth century.9 Even today, sometimes successfully and sometimes not, attempts are still frequently made to evoke children’s ‘best interests’ in order to justify initiatives and responses that disregard or run counter to their rights: the Committee itself has noted with concern, for example, that ‘governmental representatives have sometimes suggested that some level of “reasonable” or “moderate” corporal punishment can be justified as in the “best interests” of the child’.10 It bears emphasising again that the basic tenets of article 3(1) of the crc had been taken on board already in 1980, well before most of what was to be an ever-growing panoply of other rights in the crc were debated and finalised. Importantly, it was not subsequently reviewed in the light of that comprehensive range of human rights being accepted. Had that been the case, questions might well have been raised as to whether ‘best interests’ were truly relevant for interpreting and implementing all the human rights contained in the crc. In addition, the quasi-obligatory references to ‘best interests’ can actually impede awareness-raising about the fact that children have human rights as opposed to ‘special children’s’ rights. That perception reinforces the gap that regrettably has emerged between human rights organisations and those focusing on children’s questions. Yet in the great majority of instances, children’s rights can be promoted and defended on the same basis as the human rights of adults, for whom ‘best interests’ are simply not regarded as pertinent. The confusion is unfortunately exacerbated by the Committee’s General Comment, where the list of issues to be taken into account when determining the best interests of an individual child is essentially no more than a review of the rights implications of various options. The General Comment specifies, for example, that the child’s ‘right to health’ is ‘central in assessing the child’s best 9 10

For more detailed examples, see Cantwell N ‘The best interests of the child in intercountry adoption’ (2014) unicef Office of Research, Florence, 7–9. General Comment No. 8 (2006), para. 26.

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interest’,11 whereas international law establishes ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’12 and the unhchr/who Fact Sheet on this question makes no reference at all to the ‘best interests’ of anyone in relation to its implementation or ramifications.13 What might be the general justification for invoking the best interests of children when it surely can be taken for granted that meeting the obligation to ensure this right, among others, will be in the best interests of all human beings? In a different vein, the Council of Europe’s Commissioner for Human Rights has very rightly highlighted the fact that ‘protection of children is sometimes evoked as an argument to block the availability of information about lgbti people to children’.14 But why did he find it necessary to continue by proclaiming that ‘it is in the best interests of children to be informed about sexuality and gender diversity’?15 The same argument surely could be made more forcefully – and indeed less in the form of what might be termed a value judgment – on the basis of non-discrimination rights and article 13 of the crc (right to access to information), bearing in mind the restrictions stipulated in that provision. In addition, advancing ‘best interests’ might even be contested as an attempt, in part at least, to disregard limitations to the exercise of that human right as foreseen by the treaty. The procedure proposed in the General Comment to ensure that the child’s best interests are a primary consideration in the development of laws and policies is tellingly called a ‘Child Rights Impact Assessment’,16 designed ‘to predict the impact of any proposed law, policy or budgetary allocation on children and the enjoyment of their rights, and child rights impact evaluation to evaluate the actual impact of implementation’.17 It remains unclear why such an assessment, certainly valid in itself, might be concerned with ensuring respect for ‘best interests’ rather than quite simply for – as its title suggests, moreover – the human rights of children. Essentially, then, best interests become a problem when the concept is invoked pointlessly, that is, when reference to a right would or should suffice. But 11 General Comment No. 14, para. 77. 12 Art. 12 cescr. 13 See http://www.ohchr.org/Documents/Publications/Factsheet31.pdf. 14 Human Rights Comment, 2 October 2014. 15 Human Rights Comment, 2 October 2014. 16 General Comment No. 14, para. 35. 17 General Comment No. 14, referencing General Comment No. 5 (2003) on general measures of implementation of the Convention on the Rights of the Child, para. 45.

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the question is all the more complex and delicate when this deliberately vague notion, on which there has been no international consensus as to criteria or procedure, is to be the ultimate determining factor in decision-making. A review of the ‘paramount consideration’ to be given to the best interests of the child in decisions relating to intercountry adoption provides a good illustration not only of the problems involved but also of how ‘best interests’ came to be granted such a key role in the first place. 4

When ‘Best Interests’ are the Determining Factor: The ‘Problem’ in Intercountry Adoption

When intercountry adoption began in earnest, in the early 1950s, it was solely the result of private initiatives and took place in a legal void – procedurally as well as in terms of substantive standards and human rights. Those private actors invariably characterised it as a humanitarian act responding to the best interests of the children concerned. Surprisingly perhaps, as intercountry adoption developed and became increasingly regulated, the private sector managed to retain its unusually key role in this particular child protection sphere, one that has rarely ever been questioned and that was indeed consecrated once more in the 1993 Hague Convention on the issue. Likewise, the original reliance on ‘best interests’ as the most important factor (or ‘paramount consideration’) justifying intercountry adoption has simply been reaffirmed without question in all subsequent international texts, including of course the crc and that same 1993 Hague Convention. It is generally accepted that the notion of ‘best interests’ must be flexible in order, notably, to take account of the different circumstances and sociocultural contexts in which it is to be applied. Inevitably, this presents a special challenge where intercountry adoption is concerned. Actors in the sociocultural context of a country of origin in principle bear sole responsibility for determining a child’s best interests, but they may well have a very different view of the latter to the one espoused by actors in receiving countries, whose influence on ‘adoptability’ in practice can hold sway nonetheless in many instances. Under such circumstances, how is the ‘paramountcy’ of best interests of each child to be assured and proclaimed? Added to this is the fact that, at a policy level, individual receiving countries take widely differing attitudes towards situations in countries of origin where there are clear concerns about the probity of the adoption process and thus about ability to ensure the primacy of the best interests of the children concerned. It is extremely rare that receiving countries act in concert on the

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basis of a shared view of the degree to which the best interests of the children concerned are being respected. Thus, for example, three countries (Ireland, Sweden and the usa) halted adoptions from Vietnam in 2008 because of such concerns, whereas Denmark, France, Italy and others continued. In contrast, the usa pursued its adoption programme with Guatemala for several years after all European countries had withdrawn. This blatant lack of even the most basic consensus on the paramount consideration of best interests demonstrates just how dangerous reliance on it has been for the respect for children’s human rights, even in the era of the crc and the rights framework it provides. Indeed, adoptions from post-earthquake Haiti in 2010 exemplified how ‘best interests’ are still used as a pretext for actively violating children’s human rights. Receiving countries spuriously invoked ‘best interests’ to justify circumventing vital established procedures designed to protect the rights of the child, and to secure the ‘urgent’ evacuation and forced migration of children for the purpose of adoption abroad.18 There is good cause to believe that the ability to fall back on best interests greatly facilitated these initiatives, which would have been eminently more difficult to justify if the benchmark had been fixed instead simply according to more ‘traditional’ human rights considerations and internationally-agreed procedures on both adoption and evacuations. To what extent, then, can it be argued that the Committee’s General Comment has responded to this kind of situation by clarifying ‘best interests’ as ‘a right, a principle and a rule of procedure’? Carrying out a best-interests assessment and determination exercise such as that proposed in the General Comment would indeed give both process and substantive guidance to decision-making, and should thus help to avoid the more arbitrary interpretations – or deliberate manipulations19 – of the notion. However, such exercises require substantial and qualified human resources that would be difficult, if not impossible, to envisage in many countries of origin or special situations. Secondly, as noted previously, the best-interests assessment essentially involves looking at whether or not certain rights are safeguarded by the response envisaged. Consequently, in the last resort, this may not in fact be a question of ‘best interests’ as such but simply of fundamental attachment to the promotion and defence of human rights, wherein the 18

19

See Dambach M & Baglietto C Haiti: ‘expediting’ intercountry adoptions in the aftermath of a natural disaster … preventing future harm (2010); and World Disasters Report 2012 (2012) 68–70. In its General Comment No. 14, the Committee itself recognises the opportunities that exist for manipulating the concept (para. 34).

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i­ ntroduction of the ‘best interests’ requirement is little more than a regrettable and potentially counter-productive distraction. The Committee’s General Comment contains a further element that is disturbing in terms of best interests being ‘the paramount consideration’ in decisions on adoption: In the best-interests assessment, one has to consider that the capacities of the child will evolve. Decision-makers should therefore consider measures that can be revised or adjusted accordingly, instead of making definitive and irreversible decisions.20 At a general level, this statement is perfectly reasonable, but of course the legitimate hesitation it expresses as to the longer-term implications of any bestinterests determination seriously puts into question the applicability of best interests to adoption decisions. In that light, how can best interests possibly be seen as the determining criterion for what is supposed to be, precisely, a ‘definitive and irreversible’ life-changing decision? 5

When Can ‘Best Interests’ Play a Positive Role?

Human rights – including those of children – can be observed and defended quite simply as human rights. There is no a priori assumption that the promotion and protection of human rights in general, individually or collectively, will be at risk of being undertaken in ways or for reasons that might be detrimental to the rights-holders concerned or to their interests. It is therefore difficult to understand why a contrary assumption might be deemed to apply validly to children alone, and this to such an extent that it needs to be explicitly stated – and constantly and actively upheld – that their interests are to be a primary or, in some circumstances even a paramount, consideration. No approach can be completely watertight in its justification but, somewhat paradoxically and albeit in a new context, we need to return to a vision of the function of ‘best interests’ as it was in the era before the crc. In essence, that vision is of filling a gap – or gaps – in rights provision rather than underpinning the assurance of all human rights of children. By implication this includes situations where rights considerations alone do not provide sufficient guidance or grounds for decision-making. Nowadays a clear human rights framework in which best interests are to be interpreted and operationalised sets a number of 20

Para. 84.

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boundaries that cannot be lightly crossed: together with a recognised determination process, this in principle should provide some form of guarantee against the kind of unacceptable outcomes that were all too common in the past. From that standpoint and under those conditions, there are many situations where assessing best interests can be useful, not to say vital. Most have already been acknowledged – including in the Committee’s General Comment – and they comprise decisions involving in particular: • choosing between two or more potential solutions that are, a priori, all consistent with the human rights of the child concerned; • determining outcomes when there is real or apparent conflict between the requirements of two or more rights; • broaching issues not covered by existing rights; • envisaging temporary (reversible) measures in an emergency situation, with reassessment programmed and undertaken as soon as is feasible; • dealing with situations where the interests of other parties might otherwise jeopardise or unduly influence outcomes for the child – as, for example, when courts of law rely on ‘best interest’ considerations to determine custody and access conditions in situations of parental divorce; • examining the justification for derogating from specific rights where this is explicitly foreseen in the crc if deemed to be in the child’s best interests: removing a child from parental care and the family environment (arts. 9(1) and 20(1)), denying contact with parents (art. 9(3)), envisaging deprivation of liberty with adults (art. 37(c)) and excluding the presence of parents during judicial proceedings (art. 40(2)(b)(iii)). Focusing on ensuring valid responses in these situations would confer on ‘best interests’ a role somewhat analogous to the one that notion was originally designed to fulfil – a basis for decision-making when human rights were missing. The key positive differences today are that best-interests determination must take place within the bounds set by a human rights framework and that the substantive rights this contains provide sufficient guidance and grounds for decision-making on most issues. 6

Concluding Remarks

This chapter has sought to demonstrate that, when the Committee was developing its General Comment on ‘best interests’, there were compelling grounds for broaching the question in a far more circumspect manner. Those grounds

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include, but are not limited to: the raison d’être of the notion itself; the way in which it became incorporated into the crc; the problem of locating it in a human rights framework since it is applied uniquely to children; and the importance often accorded to ‘interests’-based arguments to the detriment of a truly rights-based approach. The Committee’s failure to confront issues such as these, and thus its acceptance and promotion of article 3(1) at face value, is an opportunity lost in terms of advancing the human rights of children. ‘Best interests’ became inextricably associated with children’s issues at a time when children still had few explicitly recognised human rights and certainly not a codified set of them in a binding treaty. Under those conditions, the concept initially served as virtually the sole standard, however vague, against which actions concerning children might be evaluated. Subsequently, the notion of ‘the best interests of the child’ was gradually incorporated into human rights law, but only in relation to a limited number of specified issues or circumstances. However, the drafters of the crc suddenly broadened the scope and impact of the concept to such an extent that the Committee now sees it as expressing ‘one of the fundamental values of the Convention’.21 Logically, the ‘fundamental value’ underpinning the crc is its affirmation that children have human rights that are to be respected in the same way as those of adults, not that their ‘best interests’ need to be systematically taken into account when implementing those rights, any more than this might need to be the case for adults. This does not mean that the proper determination of best interests has no role in decision-making, but this role should only come into play when the guidance and obligations provided by the letter and spirit of their human rights do not suffice. The Committee’s General Comment has certainly and very positively underlined the need to avoid subjective and arbitrary pronouncements on children’s best interests. It seeks to put in place accepted and systematic processes to assess and determine those interests, at both micro and macro levels. In so doing, however, the Committee clearly embraced its task uncritically. A more nuanced interpretation could have placed best-interests determination in the wider human rights context, thus indicating the limitations on both its pertinence from that angle and the real possibilities for assessing those interests in the way it proposes. In sum, by reasserting the status of ‘best interests’ as a pillar of the crc, the Committee may well have turned it unwittingly into a problem for achieving the human rights of children. To confront that problem, each time ‘the best interests of the child’ are invoked we would do well first and foremost to ask 21

General Comment No. 14, para. 1.

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ourselves if safeguarding the human rights of adults would benefit from an analogous reference to the ‘best interests’ of those concerned – and if not, why not? Such a ‘litmus test’ of utility could at least stimulate long overdue reflection on the role best interests should play in improving respect for the human rights of the child. Bibliography Articles

Zermatten J ‘The best interests of the child: Literal analysis, function and implementation’ (2011) Sion: Institut international des droits de l’enfant.

Reports

Cantwell N The Best Interests of the Child in Intercountry Adoption (2014) Innocenti Insight, Florence: UNICEF Office of Research. Dambach M & Baglietto C Haiti: ‘expediting’ intercountry adoptions in the aftermath of a natural disaster … preventing future harm (2010) Geneva: International Social Service. International Federation of Red Cross and Red Crescent Societies World Disasters Report 2012 (2012) Geneva.



General Comments

Committee on the Rights of the Child, General Comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment. Committee on the Rights of the Child, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration.

chapter 6

Child Rights in the United States: 25 Years Later and Counting Yvonne Vissing Abstract The United States is now the only un member country that has not ratified the crc. This chapter explores the reasons for it. These include legislative, developmental, definitional and political considerations. It is proposed that legislative explanations mask the underlying tension adults feel regarding whether children are ‘persons’ or ‘property’. There is a visible opposition group to child rights in the us that promotes the misconception that if children are given rights it means that adults will have theirs compromised. The chapter concludes that while there have been many actions taken to protect children’s rights in the past, there is a child and youth rights movement occurring at the grassroots levels that will ultimately result in the us ratification of the crc. Demographic changes in the population and greater media coverage of both national and international rights violations will facilitate both rebellion and court actions that will lead to the passage of this universal human rights treaty.

1 Introduction On the twenty-fifth anniversary of the un Convention on the Rights of the Child (crc), the United States has still not ratified the treaty. This is despite its role in constructing it and the fact that virtually every other member country of the United Nations has ratified it or is in the process of doing so. At this point, there is no indication the treaty will be ratified in the United States (us) in the near future; the president would have to send it to the Senate for review, after which it would need to be approved by a two-thirds majority. The crc was signed under President Bill Clinton but never ratified. President Barack Obama indicated that he would like the crc to be ratified1 but Republicans

1 Nutt S ‘The Convention on the Rights of the Child is 25 Years Old: It’s time for the us to ratify it’ (2014) Huffington Post.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_007

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opposed to it made it clear the treaty would not pass.2 According to Susan Kilbourne, ‘The official line is that the convention is under State Department review, but the political reality is that it’s not going anywhere until the political climate changes.’3 From this internationally embarrassing lack of legislative support for child and youth rights it would seem that the child rights movement is dead in the us. However, this is not the case.4 A number of grassroots movements are bringing the issue of child rights to the fore. These social movements involved in debates about the crc reflect competing definitions of what it means to be a child. Analysis of the crc in the us is a study of conflict theory in action. It focuses on how a group of legislators and special interest groups justify oppression of children and youth in the face of worldwide recognition of the benefits of a rights-based approach. There is a child and youth rights movement in the us, but it is fractured and not well-mobilised. Should the many groups unite, they would become a powerful force that could sway legislative action to ratify the treaty. This chapter offers a brief review of the competing definitions of childhood, the reasons the crc has met with resistance, examples of rising child rights movements, and why they could ultimately lead to the ratification of the crc in the usa. 2

Competing Definitions of Childhood

The crc debate in the us concerns definitional issues surrounding what it means to be a child. The crc uses the age of 18 as the defining limit of childhood, but questions about what it means to be a child fuel the debate. One issue is whether children should be considered as their own person or whether they are the property of their parents. Questions regarding whether they have agency, their degree of dependency, and the extent to which they need protection also muddy the debate. Age, like race, is a product of social construction that has been used to declare inherent differences between people and to justify their different treatment.5 The definition of a child is an arbitrary, symbolic 2 The Economist ‘Why Won’t America Ratify the un Convention on Child Rights?’ 6 October 6 2013. 3 Langevin-Falcon C ‘Second-class citizens?’ (1998) 58(6) Humanist 11–17. 4 Todres J ‘Who will speak for the children?’ (2009). 5 Buckingham D & Bragg S ‘Children and consumer culture’ in Montgomery H & Kellett M Children and Young People’s World: Developing Frameworks for Integrated Practice (2009).

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determination that results in social inequality. Historically the stage was set for the current debate over the nature of children. The Roman law of patria potestas, Hobbes’s view that children were under the unconditional domination of parents, Locke’s notion of children as a blank slate to be written upon to shape their capacities6 and Aries’s notion that children were small adults put parents in the role to mould children’s destiny. For most children, childhood was seldom the idyllic time of innocence, play and happiness. Middle-class children came to be regarded as precious and their lives became less harsh and more sheltered while poor and marginalised children experienced greater exclusion from the benefits of social capital.7 Economic, social, religious and moral factors entered into the debate on what children were and how they should be treated.8 By the 1900s there was an increase in state intervention and rise of a child protection movement. The model of parental responsibility shifted to a charitable child-saving one when parents were not able to keep them fed, clothed or housed. Responsibility for addressing the needs of children ultimately shifted to the government. Disagreement between parents and the state about the best interests of the child soon emerged, especially around health, education, and discipline. The result was a tension-filled relationship between government and those who view children as parental property.9 While the twentieth century was to be seen as the century of the child,10 the short-lived 1970s children’s liberation movement was so ridiculed and criticised that rights equality was never realised for our youngest citizens. Children have become a social preoccupation in recent years around protection issues, especially concerning abuse, violence, criminal justice, substance use, sex-trafficking, bullying and the impact of media and technology. As children age they engage in behaviour once deemed the territory of adults. Data indicate that

6 7 8 9

10

Archard D Children: Rights and Childhood 3 ed (2015). Zelizer V Pricing the Priceless Child (1994). Prout A & James A Constructing and Reconstructing Childhood (1990); Barnes J, Katz I, Korbin J & O’Brien M Children and Families in Communities (2006). Wells K Childhood in a Global Perspective (2010); Zelizer V Pricing the Priceless Child (1994); Cunningham H Children and Childhood in Western Society (1995); Bremmer R Children and Youth in America (1971); Kett J Rites of Passage: Adolescence in America 1790 to the Present (1977); Hawes J & R Hiner Growing up in America (1985); Nolan A Children’s SocioEconomic Rights, Democracy and the Courts (2011); James A, Jenks C & Prout A Theorizing Childhood (1998); Qvortrup J The Palgrave Handbook of Child Studies (2011); Holloway S & Valentine G Children’s Geographies (2000). Freeman M The Future of Children’s Rights (2014).

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many American youth drink alcohol, use illicit drugs and tobacco,11 engage in risky sexual practices, are involved in criminal activities either as a victim or perpetrator,12 have untreated mental or physical health problems, suicidal tendencies, and are involved with bullying.13 Issues of children’s well-being are both a parental and community concern. How best to protect children from harm and teach them how to make good choices is a point of disagreement. The ideological pendulum swings between children being seen as victims of over-protective parental control to being controllable and in need of pharmaceutical drugs, curfews, community policing, and constant monitoring of their actions to keep them in check.14 Conflicting conceptions of childhood impact the way children are treated and how their needs and interests are addressed. Because the symbolic value of children has changed, questions arise as to when a child is responsible and how best to treat him or her. Children have often been denied the right to make decisions about matters that affect them. This stems from viewing them as immature, incapable of making rational decisions and, as such, unentitled to possess rights. The view offers justification for parents who feel they have the right to intervene in all aspects of their children’s lives. But in recent years the authoritarian model of ‘sit down, shut up and do what I say’ has been replaced with greater respect for understanding the world from a child’s point of view.15 Today children are more likely to be seen as stakeholders in their own lives who must be consulted about decisions affecting them.16 Engaging them in conversation about their identity, needs, sexuality, religion, education, political involvement, use of media and how they negotiate experiences is important for both their individual well-being and the well-being of society.17 ‘The new sociology of childhood celebrates children as social actors and agents in their lives. Facilitating meaningful participation is a further endorsement of this position, laying to rest sepulchral perspectives of 11 12 13 14 15 16 17

Substance Abuse and Mental Health Services Administration (samhsa) Youth Risk Behavior Survey (2013). Centers for Disease Control Sexual Risk Behavior (2014); National Network for Youth ‘Consequences Faced by Unaccompanied Youth and their Costs to Society’ (2014). National Alliance for Mental Illness ‘Facts on children’s mental health in America’ (2015). Barnes J, Katz I, Korbin J & O’Brien M Children and Families in Communities (2006). Mayall B Towards a Sociology of Childhood (2002); Tisdall K, Davis J, Hill M & Prout A (eds) Children, Young People and Social Inclusion: Participation for What? (2006). Montgomery H & Kellett M Children and Young People’s World: Developing Frameworks for Integrated Practice (2009). Montgomery H & Kellett M Children and Young People’s World: Developing Frameworks for Integrated Practice (2009).

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children-in-waiting or human-becomings.’18 The shift in conception of what it means to be a child is reflected in the rights-based approach of the crc. 3

United States’ Resistance to the crc

In 1989 the United States worked with un members to craft the crc. Under presidents Reagan and G.H. Bush, the crc incorporated principles of the us Bill of Rights and Constitution. It was signed under President Clinton but never ratified, largely because Jesse Helms, head of the Senate Committee on Foreign Relations, misinterpreted the intent and impact of the crc.19 Senator Patrick Leahy unsuccessfully sought its ratification in 1994 and announced that ‘the administration’s resistance to ratifying the crc is due to misunderstandings about the Convention. Opponents claim that it is anti-family or infringes upon states’ rights. The crc does none of these things.’20 Nations ratifying the crc testify to the health, educational, social, psychological, and justice benefits the treaty provides for youth and families.21 Many of the rights covered in the crc are already addressed in us laws. Why, then, hasn’t it been ratified? There are two main, multifaceted and interrelated reasons: one is legislative and the other, ideological. While legislative arguments are often used to explain why the treaty has not been ratified, the position taken in this chapter is that ideological justifications are what lie behind resistance to affording rights to children. Legislatively, reasons include lack of us support for human rights treaties in general and issues related to sovereignty, federalism and treaty enforcement. Since its separation from Britain in 1776, the us has argued that individuals have rights. Its Declaration of Independence proclaims that all men are created equal, that people are endowed by the creator with certain inalienable rights, including to life, liberty and the pursuit of happiness, and that governments should help people secure these rights. Its Bill of Rights was designed to protect citizen rights, freedom of speech and religion, and the right to a fair trial. The abolition of slavery in 1885 was a human rights victory. 18 19 20 21

Montgomery & Kellet Children and Young People’s World: Developing Frameworks for Integrated Practice (2009) 56. Pangaea ‘Street Children’ (2014). Sealander J The Failed Century of the Child (2003); Rutkow L & Lozman J ‘Suffer the children?’ (2006) Harvard Human Rights Journal 19 (Spring). Lundy L ‘Child wellbeing and the uncrc’ in Arieh B & Casas F (eds) Handbook of Child Wellbeing: Theories, Methods and Policies in Global Perspective (2013) 1–32.

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President Franklin Roosevelt declared that all people were entitled to freedom of speech/expression, freedom of religion, freedom from want, and freedom from fear. Eleanor Roosevelt was the first chairperson of the un’s Commission on Human Rights. The us government has pressured other nations to improve their human rights practices through formal and informal sanctions, including war. Annually the us State Department issues a report critiquing the ­human rights practices in other nations.22 Despite these accomplishments, the us has a history of non-support for human rights treaties.23 Seventy-two international human rights treaties exist, of which the us has ratified 17.24 The crc is not the only human rights convention that the us has refused to ratify; others include the Convention on Elimination of All Forms of Discrimination against Women, the Convention against Enforced Disappearance, the Mine Ban Treaty, the Convention on Cluster Munitions, and the Convention on the Rights of Persons with Disabilities. us resistance to human rights treaties can be traced back to its constitutional system and post-Cold War ideology.25 After World War ii the Bricker Amendment laid the foundation to limit us endorsement of international treaties. The Universal Declaration on Human Rights was opposed by conservatives who felt it would promote socialism and communism. Economic, social and cultural rights became points of criticism. Fears grew that international treaties could lead to external courts and outside enforcement, and support for international treaties declined. Most countries, to varying degrees, do not implement all human rights treaties, and even those that have ratified the crc may fail to support all child rights.26 When countries fail to support the human rights of their own citizens, it weakens their position as human rights leaders. It is therefore perplexing to the world that the us, given its history, is not a leader in child rights. Some argue that the us has failed to protect the rights of its own citizens as well as those of the international community. Roth states that ‘on the few occasions when the us government has ratified a human rights treaty, it has done so in a way designed to preclude the treaty from having any domestic effect’.27 22 23 24 25 26 27

Bradley C ‘The United States and human rights treaties’ (2010) Chinese Journal of International Law 321–44. McBain S ‘Why is the us so reluctant to sign human rights treaties?’ (2013). University of Minnesota (2014) Human Rights Library. Bradley C ‘The United States and human rights treaties’ (2010) Chinese Journal of International Law 321–44. Liefaard T ‘Is the world keeping its promises on children’s rights?’ (2014). Roth K ‘The charade of us ratification’ (2000) The Chicago Journal of International Law.

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In a lay understanding of the us position on human rights, a Wikipedia entry on us human rights reads: Contrary to its constitutionally-protected requirement towards respecting of human rights, the us has been internationally criticized for its violation of human rights, including denying access to basic healthcare […] criminalization of homelessness, invading the privacy of its citizens through surveillance programs, racism, sexism, homophobia […] police brutality […] mistreatment of the mentally ill and juveniles in the prison system, crackdown on peaceful protestors […] denial of voting rights […]28 In an editorial questioning whether the us is a moral leader, Barnett observes that the us ‘has championed human rights when it sees no damage to its security and economic interests. But when human rights are perceived as potentially detrimental to national interests, the United States has consistently chosen interests over values.’29 Opponents of the crc claim that ratifying it would undermine us sovereignty by giving the un authority to determine the ‘best interests’ of American children. The constitutional dispensation of federalism is also thought to be a major stumbling block to ratification.30 The Bill of Rights addresses civil and political rights, but not individualised rights and human rights protections; nor does it include rights identified after 1789. States have the responsibility to oversee basic human rights and freedoms, including the entire spectrum of children’s rights, from education and health care to punishment.31 Even if the crc is ratified, it is up to states to implement it. Critics therefore question whether the us should ratify the treaty, since converting its principles into practice will require the cooperation of 50 states. Howard Davidson, at the American Bar Association’s Center on Children and the Law, observes that ‘[t]hese concerns are neither new nor completely invalid; however, the us has adequately addressed them in other human rights

28 29 30

31

Wikipedia ‘Human Rights in the United States’. Barnett M ‘Is America the moral leader of the world?’ (2012) cnn. Blanchfield L The United Nations Convention on the Rights of the Child (2013); Van der Vyver J ‘Children’s rights, family values and federal constraints’ (2012) 15(1) Journal of Markets and Morality 117–42. Van der Vyver J ‘Children’s rights, family values and federal constraints’ (2012) 15(1) Journal of Markets and Morality 93.

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treaties it has ratified through the use of reservations’.32 Reservations are a tool that allows countries to ‘harmonise’ treaties with their domestic laws. The government could attach ‘non-self-executing’ declarations to human rights treaties, and Davidson notes the us routinely places ‘federalism understandings’ on human rights treaties. In this regard, it must be added that while the crc remains unratified, the us Senate unanimously ratified the un Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, along with the Optional Protocol on the Involvement of Children in Armed Conflict33; however, when it did, it attached a federal understanding to it so that state/local laws will not be federalised through treaties ratified by Congress. Indeed, Van der Vyver argues that ‘[r]atification of the convention could bear fruit in the long run’, in that it could serve as an impetus for leaders to take account of issues affecting children: ‘The crc was not designed to force states parties to uphold the principles proclaimed in the convention. Its only enforcement mechanism is a reporting procedure [outlining what rights-protecting measures they adopted].’34 Some argue against the us ratifying the crc because the treaty has no enforcement teeth.35 While nations are required to provide regular documentation of the treaty’s implementation, failure to do so does not result in significant penalties, which is one reason why nations that have ratified it continue to violate children’s rights. Nevertheless, the treaty offers a lofty policy statement to which the us could aspire.36 The crc is a tool, not a rule. It is not a criminal enforcement statute; it focuses on children’s well-being, not law, and is regarded as the first step, not the last, in addressing problems faced by children. As the case of Pakistan’s Malala Yousafza illustrates,37 when she was viciously attacked her rights of health care, education, punishment of perpetrators, and ability to speak out on her own behalf were protected because her 32

Davidson H & Waddell A ‘Has the un Convention on the Rights of the Child made a difference?’ (2012). 33 Yurchyk B ‘The United States’ Compliance Decisions with Regards to the uncrc and the Two Optional Protocols: Reflections on the Theories of International Law’ (2008). 34 Van der Vyver J ‘Children’s rights, family values and federal constraints’ (2012) 15(1) Journal of Markets and Morality 140. 35 Davidson H & Waddell A ‘Has the un Convention on the Rights of the Child made a difference?’ (2012). 36 Akehurst M A Modern Introduction to International Law (1993); Alston P The Best Interests of the Child: Reconciling Culture and Human Rights (1994); Grant J The State of the World’s Children (1994). 37 See http://www.malala.org.

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rights were recognised. If a nation ratifies the crc it does not mean that all of the citizens will protect all of the children all of the time. Just as there are loopholes in nations that have endorsed the crc, there would be loopholes in the us if it ratified the treaty. This provides an escape clause as nations are not bound to implement every aspect of the treaty. If there were international enforcement mechanisms, ratification of the treaty could supersede federal or state law and it would be opposed; conversely, it is also opposed because it does not mandate enforcement. Either way, critics oppose it because they disagree fundamentally with the rights-based assumptions inherent in the crc. In sum, there are ways for the legislative stumbling blocks to be overcome if there were a will to do so. The obstacles to ensuring children their rights are actually more ideological than legislative. The legislative process has been used as a smokescreen to justify what amounts to an underlying discriminatory view of children. The ideological reasons critics have given for not endorsing the crc include the contentions that sufficient child laws are currently in place, that children are not safer in crc-endorsing states, and that children are incapable of responsible rights management and need parental protection. It is the way that children are perceived that needs to be reframed in order for a rights-based approach to be embraced and implemented. Critics argue that us ratification of the crc is unnecessary because safeguards already exist for protecting children’s rights.38 Some suggest that us laws generally comply with the crc.39 Clark, for instance, finds it ‘doubtful that [crc ratification] would represent much of an improvement’.40 Levesque argues that such commentaries are narrow and disregard the benefits of ratification: ‘The concept of children’s rights has received little attention in the United States despite its role in helping craft the crc.’41 Unlike with race and gender, there is no system to define and legislate on children’s rights. There has been a lack of discourse regarding child rights as human rights, as has been the case with other vulnerable populations. Saying that people already have rights under the law has been used as justification for not requiring explicit rights statements for people of different gender, race, religion, 38 39

40 41

Mason M ‘The us and the international children’s rights campaign: Leader or laggard?’ (2005) Journal of Social History (Summer) 955–64. Cohen C & Davidson H Children’s Rights in America: uncrc Compared with us Law (1990); American Bar Association Report of the American Bar Association Working Group on the uncrc (1993). Clark H ‘Children and the Constitution’ (1992) University of Illinois Law Review 41. Mason M ‘The us and the international children’s rights campaign: Leader or laggard?’ (2005) Journal of Social History (Summer) 956.

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(dis)abilities, and s­ exual preference. It is curious that the elderly, at one end of the age continuum, should have their rights protected but children, at the other end, should not. Mason believes this is due to American’s ambivalent attitude towards children. She argues that oppression is part of America’s historical landscape and includes not just ageism but sexism, racism and classism. us citizens are more likely to be aware of child exploitation around the world than at home. News articles discuss child labour in creating consumer goods, the plight of child soldiers, and profiles of children trafficked into the sex industry or forced into marriage. The public is aware that child maltreatment occurs in nations that have ratified the crc and asks why the us should bother ratifying it if countries supporting the treaty allow children to be maltreated. Critics see ratification as a useless gesture if it won’t do what it seeks to do – to protect children from harm. This tendency to see violations of child rights globally, rather than nationally, leads to assumptions that children’s rights are already protected in the us. Davidson, however, argues that not all crc protections are addressed by current us laws. He provides a list of treaty articles in which he finds the us is in non-compliance: • • • • • • • •

article 19, 34, and 39 (child protection, sexual exploitation, victimisation); article 20 and 25 (children deprived of a family environment/in placement); article 21 (adoption); article 23 (children with disabilities); article 24 (children’s health care); article 28(i)(e), (2) (school truancy, dropout, discipline); article 32 (child labour); and articles 37 and 40 (juvenile justice).

Davidson finds either that the rights protected in these articles have not been addressed in us laws or have been deemed inadequate to protect children. Some federal laws exist but state laws can alter them and make them stronger, weaker or preclude implementation. For instance, in articles 37 and 40 on juvenile justice, minors do not have the same rights as adults in the criminal justice system.42 It is still legally possible for juveniles who commit a crime to be sentenced, like an adult, to life imprisonment without parole. The Supreme 42

Friedman B ‘Protecting truth: An argument for juvenile rights’ (2011) ucla Law Review 58, Disc. 165; De la Vega C & Leighton M Sentencing our Children to Die in Prison (2007); Kids In Need of Defense (kind); Amnesty International (2014) ‘Demand Juvenile Justice’.

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Court43 found that mandatory life sentences without parole for juveniles under the age of 18 violated their 8th Amendment rights. At the time of the ruling, 28 of 50 states allowed for mandatory life without parole sentences for 2,500 minor prisoners.44 Until 2005, execution of juveniles was allowed, making the us the only nation allowing such a practice. The Supreme Court ruled the practice was a cruel and unusual punishment and barred by the Constitution.45 In another example, corporal punishment is banned in the crc but legal in 19 of the 50 states (38%) in the us.46 How an abused child fares in one state may be quite different to the experience of a child in an identical situation in another state. There is a lack of equity in child abuse prevention according to where a child lives, even though there may be federal laws to protect him or her. Because the crc advocates for children to have rights, critics argue that the treaty is anti-family, could take rights away from parents, and encourage children to become independent, disregard parental authority or even sue their parents.47 Opponents to the crc target articles 3, 9, 18 and 40, which focus on the ‘best interests of the child’. They are concerned that these articles may conflict with their definitions of what is best for children’s health, discipline and education. Article 16, which states that ‘no child shall be subjected to arbitrary or unlawful interference with his or her privacy’, concerns critics who feel it could remove parental rights to search their children’s rooms or know if their child had had an abortion. Article 13(1) gives children the right to freedom of expression, which critics interpret as meaning youth could speak their mind without regard for parental authority. Article 14(1), respecting the right of the child to freedom of thought, conscience and religion, could allow children to object to their parents’ religious beliefs/training. Article 17 is opposed by critics who want to control what children could read or view; the education protections of article 28(1) are opposed by those fearing it could impact home schooling, private schools, or the materials that are taught. Article 19(1), protecting children from abuse, neglect or maltreatment, angers parents who believe in corporal discipline and punishment, while article 15(1), protecting children’s 43 44 45 46

47

Miller v Alabama Certiorari to the Court of Criminal Appeals of Alabama. No. 10–9646. Argued at us Supreme Court March 20, 2012 – Decided June 25, 2012. YouthLaw (2014) us Supreme Court. Death Penalty Information Center (2005). Adwar C ‘These are the 19 states that still allow schools to hit kids’ Business Insider 28 March 2014; Wolfe D ‘Revisiting child abuse reporting laws’ (2012) 12(2) Social Work 14; Stop Hitting ‘us Corporal punishment and Paddling Statistics by State and Race’ (2014); http://www.childwelfare.gov/systemwide/laws_policies/statutes/manda.pdf (accessed 18 December 2015). Blanchfield L The United Nations Convention on the Rights of the Child (2013).

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right to freedom of association and peaceful assembly, is seen as giving children the right to join cults or gangs.48 However, Jonathan Todres found that at least 19 of the crc articles protect the rights of parents as well as those of children.49 Arguing that parental rights will be eliminated by the crc is simply not true, as demonstrated by a review of us law and the practices in ratifying nations. If anything, the treaty has been found to encourage positive parent-child communication and joint decisionmaking regarding matters that influence the child’s well-being. Opposition to the crc is not just about the treaty, federalism, sovereignty, or the legislative process; it also concerns how a certain interest group views the agency of children, the nature of the parent-child relationship, and how to use the political arena. Critics of the crc mobilise political support to protect their beliefs. They endorse candidates at the local, state and national levels who represent their views. They have active social media campaigns to promote their views, file legislation and create laws. Critics believe the us Supreme Court has ruled that no government should interfere with the parent-child relationship. They feel giving children rights would negate the importance of parental rights. Under the Supremacy Clause of the us Constitution, no treaty can override the Constitution.50 Perhaps the most vocal critic of the crc is Michael Farris and his organisation, Parental Rights.Org. Members are politically conservative, religiously fundamental, and often home-school their children. They use social media effectively.51 Well-funded and well-organised, they have proposed Senate bill sr 519 to block the ratification of the crc in the us Senate and filed a constitutional Parental Rights Amendment (pra) that would allow parental rights to trump those of children. The pra gives parents control of decision-making in their children’s upbringing, education and care. This would be problematic for youth who wish to make their own decisions, or who are abused or neglected; it would also be problematic in cases where the parent’s judgment is questionable. The pra seeks to diminish principles of international law that may affect parents, and as a Constitutional Amendment it would take precedence over the crc, state laws, or rights designed to protect minors.52 48 49

50 51 52

Blanchfield L The United Nations Convention on the Rights of the Child (2013). Todres J ‘Independent children and the legal construction of childhood’ (2014) 23 Southern California Interdisciplinary Law Journal 261–304; The Economist ‘Why Won’t America Ratify the un Convention on Child Rights?’ 6 October 2013. Reid v Covert 354 u.s. 1 (1957). Vissing Y & Burris S ‘An analysis of child and parent rights: What Google teaches us’ (2016). First Focus ‘Proposing an amendment to the Constitution of the United States relating to parental rights’ (2014) September 9.

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Whereas the definition of children and what it means to be a child has changed over time, critics hold on to a dated conception of childhood according to which children are immature and unable to use their rights appropriately. Yet the tensions between autonomy and dependence, personhood and property, are present not just in the political arena but the scholarly field too.53 One school of thought continues to see children as vulnerable, developmentally immature and dependent upon adults to care for and guide them until they are older and able to successfully care for themselves. Adults, in this perspective, are seen as necessary to protect children and negotiate their worlds for them.54 Another dominant viewpoint regards children as empowered individuals with the agency to make decisions for themselves and engage in social processes that influence their lives. Scholars, like the general public, are not immune to the ideological complications associated with a changing definition of what it means to be a child in contemporary society. Some scholars argue that the issue of limiting access to child rights has more to do with preserving existing power relationships and structural inequalities than with ensuring the protection and well-being of children.55 They recommend broadening the understanding of child rights and giving children more power in an age-appropriate manner. Others promote a developmental model of rights in which children have protections but also rights by which they can become more proactive as they get older and gain further competences.56 Lister and Moosa-Mitha describe children’s rights as ‘differently equal’ and part of a ‘differentiated universalism’.57 Critics and advocates of the crc both believe they have the best interests of children at heart. It is obvious that children need to experience love and be protected, especially when they are vulnerable. Vulnerable people of any 53

54 55 56

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Archard D Children: Rights and Childhood (2015); Archard D & Macleod C The Moral and Political Status of Children (2002); Freeman M ‘Why it remains important to take children’s rights seriously’ (2007) 15 International Journal of Children’s Rights 5–23; Campbell T ‘The rights of the minor: As person, as child, as juvenile, as future adult’ (1992) 6(1) International Journal of Law, Policy and the Family 1–23. Gran B & Bryant R ‘Children’s rights’ in Blau J & Frezzo M Sociology and Human Rights: A Bill of Rights for the 21st Century (2012) 223–35. John M Children’s Rights and Power (2003). Walker N, Brooks C & Wrightsman L Children’s Rights in the United States (1999); Erlen J ‘The child’s choice: An essential component in treatment decisions’ (1987) 15 Children’s Health Care 156–60; Billick S ‘Developmental competency’ (1986) 14 Bulletin of the American Academy of Psychiatry and Law 301–08. Lister R ‘Unpacking Children’s Citizenship’ in Invernizzi A & Williams J Children and Citizenship (2008); Moosa-Mitha M ‘A difference centered alternative to theorization of children’s citizenship rights’ (2005) 9(4) Citizenship Studies 369–88.

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age or situation – such as the elderly, the sick and the oppressed – need protection and assistance. The human condition is one of interdependence and connection. But the issue of dependence is a separate issue from having rights. One may be dependent and need protection from others without having one’s rights negated. The self-regulation argument seems mute in that people of all ages, demographic characteristics, and conditions are sometimes able to make good, informed choices and sometimes unable to; sometimes they are able to self-direct themselves better than others. To decide that competences determine who has rights would be a dangerous and difficult precedent to set for a society. No universal standard exists for knowledge or ability being the sole criteria for determining rights. Historically, there are many examples of people being fearful of rights being given to a group that previously did not have them. This fear is almost always unfounded. Giving one group rights does not take away the rights of another group. Consider the us conflicts around giving women equality, eliminating slavery and segregation or allowing gays the right to marry. It took 70 years for women to gain voting rights and 250 years to abolish slavery. Fearmongers predicted that the social order would be adversely affected if rights were given to these two oppressed population groups, yet legalising rights have had a positive effect. Childhood is one of the last areas where true and uniform human rights need to be established. Children experience institutionalised, socially structured inequality that has been a part of the nation’s history. They are seen as fundamentally different from adults, and adults assume they have the right and authority to protect children as they, rather than children, deems best. Despite data indicating that child rights can lead to happier families, healthier children, greater child engagement and more democratic behaviour,58 opposition groups reject these arguments. The study of the us refusal to ratify the crc underscores how different groups try to impose their views of reality on others to justify why childhood oppression is necessary. The crc is important because it protects the right of children to have their positions considered and their voices heard in every decision – just as every other group is entitled to have its rights considered. Having a bill of rights for children does not automatically protect them from discrimination any more than it has women, minorities, gays or the elderly. But it forces all conversations at least to consider the needs of our youngest and 58

Lundy L ‘Child wellbeing and the uncrc’ in Arieh B & Casas F (eds) Handbook of Child Wellbeing: Theories, Methods and Policies in Global Perspective (2013) 1–32; Tisdall K, Davis J, Hill M & Prout A (eds) Children, Young People and Social Inclusion: Participation for What? (2006).

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most vulnerable citizens on whom our future depends. This fact alone should be a reason for the us to support the crc. 4

The Rising Child and Youth Rights Movements in the usa

Although the United States has not ratified the crc, it is seeing a slow but steady increase in child rights activities. These include national organisations, local and grassroots organisations, state and local resolutions, and a variety of prochild and youth rights initiatives. They have not been tightly united or mobilised around the issue of ratifying the crc. Instead, these organisations’ approach is typically to engage with a particular issue without linking it to the treaty. For instance, the National Coalition for the Homeless addresses housing issues; Head Start focuses on education. While both address child poverty, they do so in different and uncoordinated ways. Merging a variety of silo organisations and activities into a comprehensive system takes time, resources, and effort. The story of child protection in the us has generally been one of progress, not failure.59 Myers divides this history into three periods: the first, from colonial times to 1875, an era before child protection; the second, 1875–1962, which marked the growth of organised child protection efforts; and the third, the period since 1962 of formal, government programming. During colonial days, there were movements to condemn child labour, require education, and provide the state the right to intervene when children’s rights were violated. During the second phase, the world’s first organisation devoted to child protection, the New York Society for the Prevention of Cruelty to Children, was established60 and by 1900 there were over 161 societies in the United States for the protection of children. The Children’s Bureau (1912) and American Youth Congress (1935) were created, the un Universal Declaration of Human Rights was endorsed and in 1959 the us voted unanimously to adopt the Declaration of the Rights of the Child,61 which required parents and governments to ensure rights for children.62 Supreme Court decisions of Brown v Topeka Board 59 60 61 62

Myers J ‘A short history of child protection in America’ (2008) 42(3) Family Law Quarterly 449–63. Myers J ‘A short history of child protection in America’ (2008) 42(3) Family Law Quarterly 449–63. Declaration on the Rights of the Child, g.a. Res. 1386 (xiv), at 19, u.n. gaor, 14th Sess., Supp. No. 16, u.n. Doc A/4354 (Nov. 20, 1959). Glendon M A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001); Henkin L How Nations Behave (1979).

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of ­Education, Tinker v Des Moine and In re Gault supported child rights63 and set the stage for the creation of more child rights legislation.64 Federal organisations emerged to protect children, including the Department of Education, Office of Juvenile Justice, Head Start, Administration for Children and Families, Childhelp, and the Child Welfare Information Gateway. Professions have emerged to incorporate child protections into their missions. In stage three of Meyer’s model, ngos and grass-root organisations have seemed to take the lead on children’s rights issues. Two main organisations working towards ratification of the crc in the us are The Campaign for the us Ratification of the Convention on the Rights of the Child65 and First Focus.66 They used the twenty-fifth anniversary of the treaty to mobilise resources to increase the chances of its ratification. More than 125 national organisations asked the White House to send the crc to the Senate for review in order to start the ratification process. But this has not occurred. Pro-child rights groups report spending valuable time refuting claims by opposition groups and less on promoting crc facts and the positive outcomes that occur when children have rights. Better use of social media on child rights could counter the negative information disseminated by opposition groups. There has also been an emergence of youth rights groups.67 These groups have the potential to mobilise more youth around rights-based initiatives, but so far have lacked the skills and organisational resources to do so. Mainstream organisations have also taken it upon themselves to promote child rights opportunities. For instance, the Muhammad Ali Center created a 2015 youth rights equality conference68 child and youth rights centres and conferences can be found at prestigious universities such as Vanderbilt University, Harvard, Yale, Emory University and Brooklyn College69 and youth rights conferences are regularly sponsored by organisations like Amnesty International.70 Salem State University created a multidisciplinary Center for Childhood and Youth Studies that includes a child studies certification and specialised courses on child rights that have led to the creation of child rights films, a speaker series, a film series, a book series, youth rights hero award, research, consultations, 63

Sealander J The Failed Century of the Child (2003); Friedman B ‘Protecting truth: An argument for juvenile rights’ (2011) 58 ucla Law Review Disc. 165. 64 Johnson M ‘Hull House’ in Grossman J The Encyclopedia of Chicago (2004). 65 See http://www.childrightscampaign.org. 66 See http://firstfocus.org. 67 See http://www.youthrights.org. 68 See https://alicenter.org/news/2015-youth-rights-conference-race-to-equality. 69 See http://law.wayne.edu/keithcenter/programs/youth-civil-rights.php. 70 See http://law.wayne.edu/keithcenter/programs/youth-civil-rights.php.

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c­ onferences and workshops. It is also working to create Rights Respecting Schools, a designation usually provided only to crc member nation schools. The commitment made at the city level to become a Child and Youth Rights Respecting Community has facilitated the creation of series of community partnerships. While laudable, most operate without reference to and knowledge of what the other programmes are doing. There are also efforts in state and local communities to promote child rights. Some states and municipalities have passed child rights resolutions. Massachusetts is preparing to pass Senate Bill 2080 to create a state commission on children and youth. Hawaii put forward hr 48 and hcr 69, Urging Adoption of the uncrc by the state and nation. Rhode Island put forward S1003 Memorializing the President and Congress to ratify the uncrc and R8143, S30313 Urging the Adoption of uncrc by the us. In South Carolina S790 Concurrent Resolution supports the crc and requests agencies providing services to children to aim to achieve the goals of the Convention. Vermont put forward JRS33 to Ratify uncrc. States have stepped forward to show commitment to children; September 24–30, 1990, was proclaimed World Summit for Children Week by governors in Colorado, Idaho, Kentucky, Nevada, New Mexico, New York, North Carolina and South Carolina. At the municipal level, cities are developing child rights-oriented resolutions, policies and services. The City Council of New York put forward Res. 1891 calling on city agencies to ensure their activities and funding processes comply with the crc. Salem, Massachusetts passed a 2014 resolution designating the city as a Child and Youth Rights Respecting Community, and an annual proclamation recognising November 20 as Universal Children’s Day. On February 9, 2010, the Santa Clara County California Board of Supervisors endorsed the Bill of Rights for Children and Youth.71 Since that time, six Santa Clara County cities, 12 school districts, 15 governmental entities, and 60 community-based organisations endorsed a Bill of Rights for Children and Youth. San Mateo County, California, adopted a children’s bill of rights in 2008. Cities, schools and non-profit organisations have implemented it and it guides decisions, policies and funding. The county’s Bill of Rights for Children and Youth has become a model for the state of California and was approved by the state legislature in 2009. In 2006 Portland, Oregon became the first us city to adopt a Bill of Rights for Children. Six months later Multnomah County joined it. The first right in their document is ‘We, the Children and Youth of Portland and Multnomah County, are entitled to a voice and opinion in decisions that will 71

Bunnett D ‘Changing the paradigm: a bill of rights for children and youth’ (2009) Big Ideas: Game-Changers for Children 101–09.

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impact our lives’.72 A 2013 election in Takoma Park, Maryland gave 16-year-olds the right to vote. Children are not allowed to vote in the United States until the age of 18, compared with Scotland where youth at 16 voted in the national referendum on separation.73 Many groups have contributed greatly to improving the well-being of children and youth by using a child rights framework, whether explicitly stated or not. Laudable as their efforts and intentions are, they have not created a groundswell of support for child and youth rights. If they joined forces, it is likely they would achieve more child rights successes. What would it take for this to occur? It may require a good push from young people themselves. It doesn’t take a crystal ball to see that children and youth are smart, good learners and will use their knowledge to change their lives for the better. They will challenge those who refuse to let them do so. Just as it took 245 years for slavery to be abolished and 70 years for women to get voting rights, it will take time for children’s rights to be accepted in the us. But it will come about due to several factors. Unfolding demographic forces place children and youth at the forefront of a rapidly changing society that will have major implications for intergroup relations, ethnic identities and electoral politics.74 Census Bureau projections indicate that by 2043, Latino children will form the dominant population group in the us. Moreover, the numbers of multi-racial or hybrid-identity children are increasing, and this racial and ethnic diversity will continue to grow. Cultural diversity is on the rise as well, due in part to immigration and intermarriage, and it not unusual to find children who are ‘American’ and have perhaps four other national or ethnic identities. This gives children a sense of global citizenship as they identify with more than one race, country or culture.75 The feeling of being a citizen of the world is enhanced through the use of technology, travel and consumerism. Young people forge identities through local-global dialogues with music, language, sports, food and fashion. The strictures of racial and cultural absolutes become permeable as children and 72 73 74 75

Bunnett D ‘Changing the paradigm: A bill of rights for children and youth’ (2009) Big Ideas: Game-Changers for Children 101–09. Brennan J ‘Let 16 year olds vote’ (2014) cnn; Nobel A ‘Maryland teens lead national movement to lower voting age’ (2013) Washington Times. Johnson K, Shaefer A, Lichter D, & Rogers L The Increasing Diversity of American Youth: Children Lead the Way to a New Era (2014) Carsey Institute. Starkey H Learning to Live Together: Struggles for Citizenship and Human Rights Education (2015).

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youth are exposed to new ways of living, thinking and doing.76 Social media empowers them to talk in real-time to others around the world. They exchange information, ideas, and news on Facebook and hundreds of other websites. They learn about the power of youth protests in Mexico, South Africa, Ireland, or the Middle East, the rights violations of children from Latin America who cross the border, or how 15-year-old Joshua Wong led 120,000 people in a Chinese democracy protest.77 Where people were once limited to knowing just about the area in which they lived, children now are being socialised to have a global awareness from early in life. This global view will only increase as they age. Given that youth in other un countries have their rights protected through the crc, it is only a matter of time before us youth demand the same. Young people have always transformed the course of history. The Children’s Crusade during the 1960s Civil Rights Movement in the us was a pivotal event that broke the back of legalised segregation. They have been actively involved in the peace, lgbtq, environmental, anti-war, labor, Occupy, women’s and reproductive rights movements.78 Youth-inspired and led social movements have been largely invisible,79 but social media is fixing that. The notion that there is a war against youth, especially poor or non-white youth,80 is now more than a whisper in the wind and it has the potential to become a hurricane. People upset about how children are treated have started taking action, especially when the criminal justice and judicial systems are not responsive. The murder of Florida teenager Trayvon Martin was a watershed event.81 Then there was the police killing of 16-year-old Kimani Gray and 12-year-old Tamir Rice. When teenager Michael Brown was killed in Ferguson, Missouri and the white officer was acquitted, riots took place. The Black Lives Matter and Black Youth Project campaigns emerged and thousands of people have taken to the street to protest unjust treatment. It is noteworthy that Brown’s parents traveled to Geneva to meet with the United Nations Committee Against Torture to ask for help.82 This action taught the nation about 76

Masson J ‘Child protection’ in Montgomery H & Kellett M Children and Young People’s World: Developing Frameworks for Integrated Practice (2009). 77 Chan W & Yang Y ‘Echoing Tiananmen, 17-year-old Hong Kong student prepares’ (2014) cnn. 78 nc Civic Education Consortium The Power of Youth: Movements Past and Present. 79 Costanza-Chock S ‘Youth and social movements: Key lessons for allies’ (2012). 80 Giroux H ‘The fire this time: Youth and the spectacle of postracial violence’ Truthout 26 May 2015. 81 See http://www.trayvonmartinfoundation.org/. 82 Levs J ‘Michael Brown’s parents address the un: We need the world to know’ cnn 12 ­November 2014.

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the existence of international human and child rights treaties that protected people in other countries. In a Baltimore City Detention Center, juveniles awaiting trial for adult crimes were illegally kept in solitary confinement, one for 143 days – a practice that violates article 7 of the International Covenant on Civil and Political Rights and article 16 of the Convention Against Torture.83 Social media exposes experiences of youth like Nobel Peace Prize winner Malala, who fought for her right to be educated and free from violence. All of a sudden people are paying attention to the fact that the un has human rights protections that the us does not adhere to.84 Youth rebellions over lack of rights has always been commonplace in homes and communities. With social media, youth are able to share experiences with others and gain support. As with all social movements in which a group in power has to relinquish old attitudes and practices, change will not come easily. But change always comes. Whether through formal crc ratification, policies and laws, informally on the streets, or in the minds of youth, their desire to seize rights will continue to increase. We can either work with them by creating a new social contract to smoothly and proactively give rights, or as a nation we can refuse to do so and wait for their uprising. It is this author’s opinion that working to empower and engage them to use their rights responsibly would be wiser than waiting for them to rebel. As Doek notes, [i]t is undoubtedly important that we invest to the maximum extent of our available resources the implementation of the rights of the child in order to prepare the child for a responsible life in a free society in the spirit of understanding, peace, tolerance, equality of sexes and friendship among all peoples ethnic, national and religious groups and persons of indigenous people.85 ‘There are two ways to change a democracy – one is to change its leaders and the other is to change its people. And the people are changing.’86 In confirmation 83 84

85 86

Giroux H ‘The fire this time: Youth and the spectacle of postracial violence’ Truthout 26 May 2015. Nolan A & Kilkelly U ‘Children’s rights under regional human rights law: A tale of harmonisation?’ in Buckley C, Donald A & Leach P (eds) Harmonisation of International Human Rights Law (2015). Doek J ‘Citizen child: A struggle for recognition’ in Invernizzi A & Williams J Children and Citizenship (2008) xvi. Blake J ‘Ferguson could be America’s future’ (2014) cnn.

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of that view, there is a youth protest video from Mexico which had a million YouTube views in which someone says, [i]t’s like a storm, getting stronger. It’s the first time in a long time that young people have raised their voice […] I believe in the movement. I believe young people, we have great power in our hands. We have information and media that other groups do not have […] I think we can do something great.87 Young people. Seasoned professionals. Advocates. Politicians. Government organisations. ngos. Volunteers. All kinds of people are working on behalf of children’s well-being. What if they were brought together in a consolidated movement? Social movement theory can contextualise the child rights movement. People who start social movements share a problem or an experience of deprivation or exploitation. They weigh alternatives and make a rational choice about what they believe will be the best course of action. Framing the issue to capture emotional and material support is essential to the success or failure of a movement. Resources like money, space, materials, volunteers and employees help them realise their goal. They need organisational know-how, strategic planning, data collection and analysis, social networking, marketing, and social visibility (especially through social media). Partnerships, allies, recruits, group solidarity and moral support are essential. Political aptitude to know who to align with, when, how, and around what actions is vital. Building a social movement that inspires people to genuinely care about children’s rights may be especially challenging, given the strength of an ideological conception of children as being incapable and in need of parental authority.88 Giroux notes that any collective struggle must include an understanding of how to use power in the interest of democratic authority and values. Merging democratic authority with the power of the people ensures freedom and justice. Child rights advocates, especially at grassroots level, must do this to move a rights agenda forward. Power is not understood in a vertical fashion, where it means control or domination over some individual or group. Power is a horizontal concept that results when individuals act together. It is this horizontal notion of power that must be part of any collective struggle to overturn what 87 88

Shoichet C ‘Mexico Student Protest Movement’ (2012) cnn; Schoichet C & Torres M ‘­Social Media fuels Mexico protests’ (2012) cnn. Vissing Y Introduction to Sociology (2012).

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Giroux calls ‘the authoritarian nightmare that currently engulfs us society’.89 He states that young people in the us, especially poor people of colour, are faced with a sense of hopelessness about the future that is almost unparalleled in recent history. It is a prescription for despair and violence. If youth can collaborate with others there is opportunity for developing new modes of understanding, insight and an alternative sense of the future, one that could include better protection of child rights and perhaps the ratification of the crc. The crc inspires us to think differently about children.90 The treaty could benefit all children and lay a foundation to eliminate many of our social problems. It provides a framework that legislators can use to advocate for laws, policies and practices that ensure all children are protected. It would empower us to look at issues we have not addressed before and consider children in every decision made. This will require a shift in ‘deeply held assumptions about children’s needs, children’s development, protection of children and children’s agency’.91 Instead of viewing children as citizens of tomorrow, the shift recognises children as having agency and being full citizens today. This chapter has shown that within the us there have been endorsements of child rights legislation, the creation of child protection organisations, and a variety of groups that advocate for the rights of children and youth. The general public may well be more in support of child rights than it seems to be; however, no national data are available to verify this. It appears to this author that the crux of opposition to the crc is ideologically based. Opponents to a personhood view of children and youth have effectively secured the support of enough political legislators to prevent the treaty from being considered in the Senate. Critics have waged an effective social media campaign to promote their rationale for opposing the treaty. However, as demographic changes occur in America to make non-white individuals a majority group, as technology increases self-perception in youth as global citizens, and as the oppression foisted upon minorities is rejected, the prospects for ratification of the crc improve significantly: legislators in power today will not be there tomorrow. The choice the nation faces is to proactively embrace these inevitable social changes and encourage youth to seize positive citizenship rights opportunities, or to alienate the youth and see rights change 89 90 91

Giroux H ‘The fire this time: Youth and the spectacle of postracial violence’ Truthout 26 May 2015. Lansdown G The Evolving Capacities of the Child (2005); Cipriani D Children’s Rights and the Minimum Age of Criminal Responsibility (2009). Invernizzi A & Williams J Children and Citizenship (2008) xv; Lister R ‘Unpacking Children’s Citizenship’ in Invernizzi A & Williams J Children and Citizenship (2008).

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forced in a conflictual manner. Just as other social movements in the us have steadily come to realise the rights of oppressed groups, so a child rights agenda is likely to have its day. It will only take time. Bibliography Books

Akehurst M A Modern Introduction to International Law (1993) New York: Routledge. Alston P The Best Interests of the Child: Reconciling Culture and Human Rights (1994) New York: Oxford University Press. Archard D Children: Rights and Childhood 3 ed (2015) Oxford: Routledge. Archard D & Macleod C The Moral and Political Status of Children (2002) Oxford: ­Oxford University Press. Barnes J, Katz I, Korbin J & O’Brien M Children and Families in Communities (2006) West Sussex: John Wiley. Blau J & Frezzo M Sociology and Human Rights: A Bill of Rights for the 21st Century (2012) Thousand Oaks, California: SAGE. Bremmer R Children and Youth in America (1971) Boston: Harvard University Press. Cipriani D Children’s Rights and the Minimum Age of Criminal Responsibility (2009) Burlington, VT: Ashgate. Cohen C & Davidson H Children’s Rights in America: UNCRC Compared with US Law (1990) Chicago: American Bar Association Center on Children and the Law. Cunningham H Children and Childhood in Western Society (1995) New York: Longman. De la Vega C & Leighton M Sentencing our Children to Die in Prison (2007) Center of Law and Global Justice, University of San Francisco School of Law. Freeman M The Future of Children’s Rights (2014) Leiden: Brill/Nijhoff. Glendon M A World Made New: Eleanor Roosevelt and the Universal Declaration of H ­ uman Rights (2001) New York: Random House. Grant J The State of the World’s Children (1994) New York: Oxford University Press. Hawes J & R Hiner Growing Up In America (1985) Urbana: University of Illinois Press. Henkin L How Nations Behave (1979) New York: University Press. Holloway S & Valentine G Children’s Geographies (2000) London: Routledge. Invernizzi A & Williams J Children and Citizenship (2008) London: SAGE. James A, Jenks C & Prout A Theorizing Childhood (1998) Williston, VT: Teachers College Press. John M Children’s Rights and Power (2003) New York: Jessica Kingsley. Kett J Rites of Passage: Adolescence in America 1790 to the Present (1977) New York: Basic Books. Mayall B Towards a Sociology of Childhood (2002) Berkshire, UK: Open University Press.

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Montgomery H & Kellett M Children and Young People’s World: Developing Frameworks for Integrated Practice (2009) Bristol: Policy Press. Nolan A Children’s Socio-Economic Rights, Democracy and the Courts (2011) Oxford: Hart Publishing. Prout A & James A Constructing and Reconstructing Childhood (1990) London: Routledge. Qvortrup J The Palgrave Handbook of Child Studies (2011) London: Palgrave-McMillan. Sealander J The Failed Century of the Child (2003) Cambridge, UK: Cambridge University Press. Starkey H Learning to Live Together: Struggles for Citizenship and Human Rights Education (2015) London: IOE Press. Tisdall K, Davis J, Hill M & Prout A (eds) Children, Young People and Social Inclusion: Participation for What? (2006) Bristol: Policy Press. Vissing Y Introduction to Sociology (2012) San Diego: Bridgepoint Education. Walker N, Brooks C & Wrightsman L Children’s Rights in the United States (1999) Thousand Oaks, California: SAGE. Wells K Childhood in a Global Perspective (2010) London: Polity Press. Zelizer V Pricing the Priceless Child (1994) Princeton, New Jersey: Princeton University Press.



Chapters in Books

Buckingham D & Bragg S ‘Children and consumer culture’ in Montgomery H & Kellett M Children and Young People’s World: Developing Frameworks for Integrated Practice (2009) Bristol: Policy Press. Bunnett D ‘Changing the paradigm: A bill of rights for children and youth’ (2009) Big Ideas: Game-Changers for Children 101–09 Washington, D.C.: First Focus. Doek J ‘Citizen child: A struggle for recognition’ in Invernizzi A & Williams J Children and Citizenship (2008) London: SAGE. Gran B & Bryant R ‘Children’s rights’ in Blau J & Frezzo M Sociology and Human Rights: A Bill of Rights for the 21st Century (2012) 223–35 Thousand Oaks, California: SAGE. Johnson M ‘Hull House’ in Grossman J The Encyclopedia of Chicago (2004) Chicago:University of Chicago Press. Lister R ‘Unpacking children’s citizenship’ in Invernizzi A & Williams J Children and Citizenship (2008) London: SAGE. Lundy L ‘Child wellbeing and the UNCRC’ in Arieh B & Casas F (eds) Handbook of Child Wellbeing: Theories, Methods and Policies in Global Perspective (2013) 1–32 New York: Springer. Masson J ‘Child Protection’ in Montgomery H & Kellett M Children and Young People’s World: Developing Frameworks for Integrated Practice (2009) Bristol: Policy Press. Nolan A & Kilkelly U ‘Children’s rights under regional human rights law: A tale of harmonisation?’ in Buckley C, Donald A & Leach P (eds) Harmonisation of International Human Rights Law (2015) Boston: Brill/Martinus Nijhoff.

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Journal Articles



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Billick S ‘Developmental competency’ (1986) 14 Bulletin of the American Academy of Psychiatry and Law 301–08. Bradley C ‘The United States and human rights treaties’ (2010) Chinese Journal of International Law 321–44. Campbell T ‘The rights of the minor: As person, as child, as juvenile, as future adult’ (1992) 6(1) International Journal of Law, Policy and the Family 1–23. Clark H ‘Children and the Constitution’ (1992) University of Illinois Law Review 1–41. Erlen J ‘The child’s choice: An essential component in treatment decisions’ (1987) 15 Children’s Health Care 156–60. Freeman M ‘Why it remains important to take children’s rights seriously’ (2007) 15 International Journal of Children’s Rights 5–23. Friedman B ‘Protecting truth: An argument for juvenile rights’ (2011) UCLA Law Review 58, Disc. 165, available at http://www.uclalawreview.org/?p=1535 (accessed 23 November 2015). Langevin-Falcon C ‘Second-class citizens?’ (1998) 58(6) Humanist 11–17. Mason M ‘The US and the international children’s rights campaign: Leader or laggard?’ (2005) Journal of Social History (Summer) 955–64. Moosa-Mitha M ‘A difference centered alternative to theorization of children’s citizenship rights’ (2005) 9(4) Citizenship Studies 369–88. Myers J ‘A short history of child protection in America’ (2008) 42(3) Family Law Quarterly 449–63, available at http://www.americanbar.org/content/dam/aba/publishing/ insights_law_society/ChildProtectionHistory.authcheckdam.pdf (accessed 19 November 2015). Rutkow L & Lozman J ‘Suffer the children?’ (2006) 19 Harvard Human Rights Journal (Spring). Todres J ‘Independent children and the legal construction of childhood’ (2014) 23 Southern California Interdisciplinary Law Journal 261–304. Van der Vyver J ‘Children’s rights, family values and federal constraints’ (2012) 15(1) Journal of Markets and Morality 117–42, available at http://www.marketsandmoral ity.com/index.php/mandm/article/viewFile/688/668 (accessed 19 November 2015). Wolfe D ‘Revisiting child abuse reporting laws’ (2012) 12(2) Social Work 14, available at http://www.socialworktoday.com/archive/031912p14.shtml (accessed 19 November 2015).

Levs J ‘Michael Brown’s parents address the UN: We need the world to know’ CNN 12 2014, available at http://www.cnn.com/2014/11/11/us/ferguson-brown-parents-u-n-/ (accessed 17 February 2016). Nobel A ‘Maryland teens lead national movement to lower voting age’ (2013) Washington Times, available at http://www.washingtontimes.com/news/2013/may/15/

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maryland-teens-lead-national-movement-to-lower-vot/?page=all (accessed 19 November 2015). The Economist ‘Why Won’t America Ratify the UN Convention on Child Rights?’ 6 2013, available at http://www.economist.com/blogs/economist-explains/2013/10/econo mist-explains-2 (accessed 19 November 2015).

Reports

American Bar Association Report of the American Bar Association Working Group on the UNCRC (1993) Washington, D.C. De la Vega C & Nelson CH ‘Update on the Juvenile Death Penalty’ International Civil Liberties Report (n.d.), available at https://www.aclu.org/files/iclr/delavega.pdf (accessed 19 November 2015). Lansdown G The Evolving Capacities of the Child (2005) UNICEF, available at http:// www.unicef-irc.org/publications/384 (accessed 19 November 2015).

Miscellaneous

Adwar C ‘These are the 19 states that still allow schools to hit kids’ Business Insider 28 2014, available at http://www.businessinsider.com/19-states-still-allow-corporal -punishment-2014-3 (accessed 24 February 2016). Amnesty International ‘Demand Juvenile Justice’ (2014), available at http://www.amnestyusa.org/our-work/issues/children-s-rights/juvenile-life-without-parole (accessed 19 November 2015). Barnett M ‘Is America the moral leader of the world?’ CNN 4 July 2012, available at http://edition.cnn.com/2012/07/04/opinion/barnett-human-rights/ (accessed 19 November 2015). Blake J ‘Ferguson could be America’s future’ CNN 23 August 2014, available at http:// edition.cnn.com/2014/08/23/us/ferguson-blake/index.html?iref=allsearch (accessed 19 November 2015). Blanchfield L The United Nations Convention on the Rights of the Child (2013) Congressional Research Service, available at http://fas.org/sgp/crs/misc/R40484.pdf (accessed 19 November 2015). Brennan J ‘Let 16 year olds vote’ CNN 19 September 2014, available at http://edition.cnn .com/2014/09/19/opinion/brennan-voting-age/index.html?hpt=hp_t5 (accessed 19 November 2015). Centers for Disease Control (2014) Sexual Risk Behavior, available at http://www.cdc .gov/healthyyouth/sexualbehaviors/ (accessed 19 November 2015). Chan W & Yang Y ‘Echoing Tiananmen, 17-year-old Hong Kong student prepares’ (2014) CNN, available at http://edition.cnn.com/2014/09/21/world/asia/hong-kong-joshua -wong-democracy-protest/ (accessed 19 November 2015).

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Costanza-Chock S ‘Youth and social movements: Key lessons for allies’ (2012), available at http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/KBWYouthandSo cialMovements2012_0.pdf (accessed 23 November 2015). Davidson H & Waddell A ‘Has the UN Convention on the Rights of the Child made a difference?’ (2012), available at http://www.brooklyn.cuny.edu/web/aca_centers _children/091114_CPFNY_HowardDavidson_UNConvention.pdf (accessed 23 November 2015). Death Penalty Information Center (2005), available at http://www.deathpenaltyinfo. org/u-s-supreme-court-roper-v-simmons-no-03-633?scid=38&did=885 (accessed 19 November 2015). First Focus ‘Proposing an amendment to the Constitution of the United States relating to parental rights’ 9 September 2014, Washington, D.C. Giroux H ‘The fire this time: Youth and the spectacle of postracial violence’ Truthout 26 May 2015, available at http://www.truth-out.org/news/item/30907-the-fire-this-time -black-youth-and-the-spectacle-of-postracial-violence (accessed 23 November 2015). Johnson K, Shaefer A, Lichter D, & Rogers L The Increasing Diversity of American Youth: Children Lead the Way to a New Era (2014) Carsey Institute, available at http://schol ars.unh.edu/cgi/viewcontent.cgi?article=1211&context=carsey (accessed 19 November 2015). Kids In Need of Defense (KIND), available at http://www.supportkind.org/en/ (accessed 18 November 2015). Liefaard T ‘Is the world keeping its promises on children’s rights?’ (2014), available at http://leeronskennen.leidenuniv.nl/en/ton-liefaard/?utm_source=homepage_en -leidenuniv-banner&utm_campaign=ton-liefaard (accessed 19 November 2015). McBain S ‘Why is the US so reluctant to sign human rights treaties?’ (2013), available at http://www.newstatesman.com/north-america/2013/10/why-us-so-reluctant-sign -human-rights-treaties (accessed 19 November 2015). National Alliance for Mental Illness ‘Facts on children’s mental health in America’ (2015), available at http://www.nami.org (accessed 20 February 2016). National Network for Youth ‘Consequences Faced by Unaccompanied Youth and their Costs to Society’ (2014), available at https://www.nn4youth.org/wpcontent/ uploads/IssueBrief_Youth_Homelessness.pdf (accessed 20 February 2016). NC Civic Education Consortium The Power of Youth: Movements Past and Present, available at http://civics.sites.unc.edu/files/2012/05/PowerofYouth1.pdf (accessed 19 November 2015). Nutt S ‘The Convention on the Rights of the Child is 25 Years Old: It’s time for the US to ratify it’ (2014) Huffington Post, available at http://www.huffingtonpost .com/samantha-nutt-md/the-convention-on-the-rig_b_6186146.html (accessed 19 November 2015).

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Pangaea ‘Street Children’ (2014), available at http://pangaea.org/street_children/ world/helms.htm (accessed 19 November 2015). Roth K ‘The charade of US ratification’ (2000) The Chicago Journal of International Law, available at https://www.globalpolicy.org/component/content/article/157/26883 .html (accessed 19 November 2015). Schoichet C & Torres M ‘Social Media fuels Mexico protests’ CNN 24 May 2012, available at http://edition.cnn.com/2012/05/24/world/americas/mexico-protests/ index.html?iref=allsearch (accessed 19 November 2015). Shoichet C ‘Mexico Student Protest Movement’ CNN 27 June 2012, available at http:// edition.cnn.com/2012/06/27/world/americas/mexico-student-protest-movement/ index.html?iref=allsearch (accessed 19 November 2015). Stop Hitting ‘US Corporal punishment and Paddling Statistics by State and Race’ (2014), available at http://www.stophitting.com/index.php?page=statesbanning (accessed 19 November 2015). Substance Abuse and Mental Health Services Administration (SAMHSA) Youth Risk Behavior Survey (2013), available at http://www.samhsa.gov/data/sites/default/files/ NSDUHresultsPDFWHTML2013/Web/NSDUHresults2013.pdf (accessed 19 November 2015). Todres J ‘Who will speak for the children?’ (2009) PEN American Center, available at https://www.youtube.com/watch?v=vZyFgJLFWPk (accessed 24 February 2016). University of Minnesota, Human Rights Library, available at http://www1.umn.edu/ humanrts/research/ratification-index.html (accessed 19 November 2015). Vissing Y & Burris S ‘An analysis of child and parent rights: What Google teaches us’ (2016) Presented at Eastern Sociological Association Meeting, Boston. Wikipedia ‘Human Rights in the United States’, available at http://en.wikipedia.org/ wiki/Human_rights_in_the_United_States (accessed 23 November 2015). YouthLaw (2014) US Supreme Court, available at http://www.youthlaw.org/juvenile_ justice/6/us_supreme_court_bans_mandatory_life_without_parole_for_youth/ (accessed 19 November 2015). Yurchyk B ‘The United States’ Compliance Decisions with Regards to the UNCRC and the Two Optional Protocols: Reflections on the Theories of International Law’ (2008) Ohio State University.

Part 2 Towards More Effective Implementation

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chapter 7

crc Dialogues: Does the Committee on the Rights of the Child ‘Speak’ to the National Courts? Meda Couzens Abstract Despite the popularity of the crc, the national courts’ meaningful engagement with it seems to be lagging behind. This chapter advances the view that the Committee on the Rights of the Child could and indeed ought to assist the courts in applying the crc more effectively. Acknowledging that the output of the Committee is not binding on national courts, an argument is made for the Committee to improve the legal cogency and persuasiveness of its views in order to increase its chances of influencing the courts’ position in terms of the domestic legal status of the crc (especially in terms of its direct application) and the interpretation of its norms. This would potentially improve the national implementation of the crc and children’s access to judicial remedies. The analysis provided shows, however, that there is a low usage of the Committee’s output by national courts and that, although helpful for the national courts to a certain extent, the Committee’s output remains wanting in many respects. A few suggestions are made in terms of how the Committee’s work could be improved to be of more assistance in national courts’ engagement with the crc.

1 Introduction The courts play an important role in the implementation of the Convention on the Rights of the Child (crc). However, at times they have acted as gatekeepers for the crc by denying its direct application (where relevant), doubting its justiciability or giving national laws interpretations contrary to the crc. This may be because courts do not find it easy to engage with the crc. The crc has several facets (advocacy, policy and legal), and its successful implementation depends on acknowledging these different, but equally important, dimensions.1 The courts are bound by their institutional position to identify the crc’s legally enforceable dimension, which is not always easy, considering the multi-dimensional nature of the Convention. These difficulties may constitute 1 Himes JR ‘Monitoring children’s rights: Cutting through the confusion and planning for effective action’ Verhellen E (ed) Monitoring Children’s Rights (1996) 119. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_008

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a disincentive for the courts to engage with the crc,2 leading to an underdeveloped crc jurisprudence and fewer legal remedies for children whose rights have been violated. I therefore raise questions as to whether and how the Committee on the Rights of the Child (the Committee) can assist national courts in engaging more meaningfully with the crc. Although there is no direct, formal or institutional relationship between the national courts and the Committee, the Committee can ‘speak’ to the courts through the relevance and cogency of its legal interpretations of the crc. Can it be expected of the Committee to deal with issues that are relevant for the courts, in a way that makes its output useful for the courts? I argue that the Committee ought to do so, for two reasons: first, its mandate requires it to pay attention to the courts’ application of the crc and respond to a certain extent to the difficulties encountered by them in engaging with the crc; secondly, to enhance the domestic application of the crc, it is useful for the Committee to make its output more relevant for the courts. I will briefly detail these reasons. With regard to the first of them, article 43(1) establishes the Committee ‘[f]or the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention’. States submit reports in which they ‘shall indicate factors and difficulties’ in implementing the crc3 and the Committee may request additional information when needed.4 Difficulties related to courts’ application of the crc can be reported by States Parties, signalled in the alternative reports of ngos, or revealed following requests for further information by the Committee. The reporting process is a dialogue premised on the idea that where the state encounters difficulties in implementing the crc, the Committee provides constructive feedback. As such, this constructive feedback should include issues relevant to the courts when the difficulties encountered in the implementation of the crc are court-related. The Committee’s output is not normative and there are issues over which national courts have full control (for example, decisions on the direct application of the crc). This does not detract from the expectation that the Committee will express views on the difficulties raised in the judicial application of the crc, leaving it to the courts to decide whether and how to integrate the views of the Committee. The second reason is utilitarian. In its interpretation of the crc, the Committee needs to consider that courts form part of its wider audience and that 2 The courts may prefer legal instruments with which they are more familiar or whose meaning has been clarified by authoritative international bodies. 3 Art. 43(1) crc. 4 Art. 43(4) crc.

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they may contribute significantly to the implementation of the crc. In order to make a positive impact on the courts, the Committee needs to pay attention to the relevance of its output for them. So far, the courts have not been very enthusiastic about the work of the Committee. Some do not cite the Committee’s output,5 while others, such as those in Bangladesh,6 Norway,7 the United Kingdom (uk)8 and South Africa,9 have referred to General Comments to support a child-centred legal reasoning. In Canada10 and Norway,11 Concluding Observations and General Comments have been used in powerful dissenting opinions to support child-focused approaches to legal interpretation. More generally, the 2002 and 2004 International Law Association reports indicate an isolated judicial use of the Committee’s output.12 A search on codices13 retrieved 67 full-text decisions citing the Committee,14 of which only eight were rendered by national courts.15 While quantitative accounts may have flaws,16 they are indicative of a low usage by national courts of the Committee’s output. 5 6 7

8 9 10 11 12

13 14

15 16

For example, courts in Belgium, France and Romania. Ironically, these are monist countries where the crc is part of the domestic legal order. Legal Aid and Services Trust (blast) and Farida Yeasmin and another Writ of petition 5684/2010, Supreme Court of Bangladesh, High Court Division. A, B, C, D and Norwegian Association for Asylum Seekers (noas) (third party intervener) v The State, represented by the Immigration Appeals Board HR-2012-02398-P; A, B and C and The Norwegian Association for Asylum Seekers (noas) (third-party intervener) v The State HR-2012-02399-P. zh (Tanzania) (fc) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] uksc 4. dpp Transvaal v Minister for Justice and Constitutional Development and Others [2009] zacc 8; J v National Director of Public Prosecutions and Another [2014] zacc 13. Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) [2004] 1 s.c.r. 76, 2004 scc 4, dissenting opinion of Arbour J. See the immigration cases referred to above. International Law Association (ila) Interim Report on the Impact of the Work of the United Nations Human Rights Treaty Bodies on National Courts and Tribunals (2002) (hereafter 2002 Report); ila Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies (2004) (hereinafter 2004 Report). The case law database of the Venice Commission, containing judgments from courts with constitutional jurisdiction, including some international courts. The search was conducted on 18 November 2014. codices also contains two Supreme Court of Justice of Argentina decisions (in Spanish) referring to the work of the Committee. The work of the Committee was cited by courts in Latvia, Norway, Canada, South Africa and Japan. For example, the codices database contains case law only from courts with constitutional jurisdiction. Professor Wouter Vandenhole (who was in the audience at the Leiden

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Several factors may contribute to this, such as a lack of awareness or lack of physical access (including language barriers) to the Committee’s work, or the fact that the Committee has not yet addressed individual communications, a task which is more similar to the application of the law by the courts than other outputs by the Committee. However, these factors cannot be said to explain fully the low judicial engagement with the work of the Committee, especially when the academic and advocacy sectors often turn to the Committee for guidance on the meaning of the Convention. The concern is that, as discussed in Section 3 below, the Committee’s output is insufficiently relevant or persuasive for the courts. This chapter is structured as follows: Section  2 provides brief general information about the legal status of treaty bodies’ output; Section 3 examines whether the Committee’s output is useful to the courts; and Section  4 concludes with some suggestions. 2

Treaty Bodies Output and the Courts: General Aspects

Generally, the mandate of treaty bodies consists of monitoring State Parties’ implementation of human rights treaties. Some treaty bodies also have a protective mandate which includes the ability of such bodies to deal with individual communications. International human rights treaties do not confer on treaty bodies the mandate to issue binding interpretations of treaties.17 However, ‘it can be accepted that the treaty bodies have, as a practical matter, the power to adopt interpretations of the treaty in question, since that is essential to their carrying out their functions’.18 There is a wide variety of views regarding the legal status of the treaty bodies’ output: an authoritative interpretation of human rights treaties,19 a ­persuasive interpretation tool,20 or a ‘highly relevant’21 source of interpretation of international treaties. The fact remains, however, that treaty bodies’ output is not

17 18 19 20 21

crc Conference) warned that such quantitative enquiries may discount the fact that some courts do not indicate in their judgments all sources which might have influenced their reasoning. Space constraints prevent a discussion of this issue, but there is something to be said about courts being ‘quietly’ receptive to the work of the Committee but failing to acknowledge it. ila 2002 Report para. 29; ila 2004 Report para. 15. ila 2004 Report para. 18. Blake C ‘Normative instruments in international human rights law: Locating the general comment’ (2008). ila 2002 Report para. 30. ila 2002 Report para. 36.

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binding, and treaty bodies, like the Committee, can assist the courts in their engagement with international law mainly through the cogency and persuasiveness of their interpretations of treaties. When the courts are persuaded by the interpretation of the treaty body, they refer to its documents as being authoritative, but when not, they point to the non-binding nature of its output.22 The type of treaty body output may also influence the courts’ views on its relevance. For example, courts in Australia and New Zealand have commented that the ability of treaty bodies to exercise scrutiny over states when they deal with individual communications is likely to influence the interpretation of the national law by national courts.23 The views of treaty bodies in individual communications and general comments are the treaty outputs most often referred to by the courts, with the output of the Human Rights Committee (the hrc) leading in this regard.24 Several factors may influence the use of treaty bodies’ output by national courts, including: the international law being a part of the domestic legal order; the direct incorporation of the treaty provisions in statutes or constitutions; knowledge of treaty bodies; and availability of treaty body documents in the local language.25 The extent to which the treaty-body output influences the outcome in a matter seems to be influenced by factors such as its relevance, detail and persuasiveness;26 the general openness of the courts to using international law sources; the existence of national or international materials dealing with the issue in a more detailed manner; and the existence of a regional body that delivers binding judgments.27 Generally, however, the impact of the treaty bodies’ output may be difficult to evaluate because often, even when reaching an interpretation compatible with that of the treaty body, the courts do so by citing a variety of other legal authorities, including regional court decisions or national case-law.28 The quality of the legal reasoning influences the persuasiveness of treatybody output.29 Lack of comprehensiveness, clarity and rigour may diminish 22

23 24 25 26

27 28 29

Van Alebeek R & Nollkaemper A ‘The legal status of decisions by human rights treaty bodies in national law’ in Keller H & Ulfstein G (eds) un Human Rights Treaty Bodies: Law and Legitimacy (2012) 402 (hereinafter ‘The legal status’). ila 2002 Report para. 35. ila 2002 Report paras. 16 and 24. ila 2004 Report paras. 180–2. Courts may prefer to make recourse to the jurisprudence generated by the European Convention on Human Rights even in countries not party to the latter Convention because of the variety of its jurisprudence and the fact that general comments of treaty bodies may be too general or not persuasive (ila 2002 Report para. 62). ila 2004 Report para. 179. ila 2002 Report para. 18. ila 2002 Report para. 19.

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the authority of treaty bodies.30 Treaty bodies have been criticised for their lack of a proper interpretation methodology, which in turn leads to inconsistent and unsubstantiated positions that lack persuasiveness and may undermine the authority of the treaties and legal certainty.31 The receptiveness of national courts to the output of treaty bodies seems to be influenced by the perceived authority of these bodies. Citing Steiner, Mechlem points out that ‘the influence of a treaty body will rest primarily on the quality of its argument and on the degree to which it expounds the respective treaty in a serious, probing, and illuminating way’.32 The non-judicial nature and procedure of the treaty bodies, the variety of functions they perform and their multi-disciplinary composition may also affect the authority which they enjoy.33 3

Is the Output of the Committee Relevant for the National Courts?

The Committee can ‘speak’ to the national courts in the reporting process as well as in its general comments, as discussed below. 3.1 The Reporting Process In order to provide court-relevant input, the Committee needs to be informed about difficulties potentially encountered by courts. It has a certain degree of control over obtaining such information, by drafting its reporting guidelines and lists of issues addressed to States Parties, or by engaging in dialogue with states at the time of discussing their reports. Article 43(1) of the crc, as discussed in Section 1, enables the Committee to be proactive in obtaining information from the state in terms of difficulties encountered in implementing the crc, including court-related difficulties. There is an upward trend in the interest of the Committee in the judicial application of the crc. The Committee moved from a position where 30 31 32 33

Van Alebeek R & Nollkaemper A ‘The legal status’ 406–07. Mechlem K ‘Treaty bodies and the implementation of human rights’ (2009) 42 Vanderbilt Journal of Transnational Law 905 (hereinafter ‘Treaty bodies’). Mechlem K ‘Treaty bodies’ 946. Van Alebeek R & Nollkaemper A ‘The legal status’ 405; Mechlem K ‘Treaty bodies’ 908. Not all un human rights conventions explicitly require the involvement of legal experts; a higher number of legally trained members may indicate a perception that some rights are more ‘legal’ than others (Mechlem K ‘Treaty bodies’ 916). Article 43(2) of the crc indicates only that it is desireable that membership of the Committee reflect ‘the principal legal systems’. Ten out of the current 18 members of the crc Committee have a legal background.

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judicial mechanisms were not mentioned as general implementation mea­ sures,34 to one requiring that states accompany their reports with, inter alia, copies of ‘principal … judicial decisions’ relevant for the implementation of the crc;35 provide information on remedies available and their accessibility to children;36 and submit analytical information about how, inter alia, jurisprudence impacts on children in the respective state.37 Currently, the Committee explicitly requires information about the judicial application of certain crc provisions,38 including articles 3 and 12,39 and rights concerning family environment and alternative care.40 Although there is interest by the Committee in the role of the courts in giving effect to the crc, the Committee is inconsistent. One area in which this inconsistency is apparent is the manner in which the Committee engages with the direct application of the crc in monist states. This has been a controversial issue in judicial practice and has raised difficulties in giving effect to the crc in certain jurisdictions. Nevertheless, the attention given by the Committee to this issue has fluctuated. It was, for example, only in 2009 that Romania was asked about the direct application of the crc by the courts.41 In 1995, B ­ elgium was commended for the direct application of the crc, but it was only in 2010, when assessing the third and fourth periodic reports, that 34 35

36 37 38 39 40 41

‘General Guidelines Regarding the Form and Content of Initial Reports to be Submitted by State Parties under Article 44, Paragraph 1(a), of the Convention (1991)’ para. 9. ‘General Guidelines Regarding the Form and Content of Periodic Reports to be Submitted by State parties under Article 44, Paragraph 1(b), of the Convention (2005)’ para. 7 (hereafter ‘Guidelines 2005’). The latter were first adopted in 1996, according to Vandenhole W The Procedures Before the un Human Rights Treaty Bodies: Divergence or Convergence? (2004) 141 (hereinafter The Procedures). See also ‘Treaty-specific guidelines regarding the form and content of periodic reports to be submitted by States parties under article 44, paragraph 1(b), of the Convention on the Rights of the Child (2010)’ para. 15 (hereinafter ‘Guidelines 2010’). Guidelines 2005 para. 14; the Guidelines 2010 para. 7. Guidelines 2010 para. 13. Guidelines 2005 paras. 13, 15, 16, 19, 21, 23. Guidelines 2010 para. 25. Guidelines 2010 para. 31. ‘List of issues to be taken up in connection with the consideration of the third and fourth periodic reports of Romania 2009’. The state was unable to provide the information required by the Committee, although the Constitutional Court and the High Court have relied on the crc in their reasoning. Two members of the Committee probed the issue (Summary record of the 1415th meeting (2009) para. 2), and the 2009 Concluding Observations to Romania take note of national courts not referring to the crc and recommend judicial training on the crc (Concluding Observations: Romania (2009) para. 7).

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the Committee raised concerns that, although the crc was directly applicable, it was not aware of cases in which the crc was invoked directly.42 In 1999, Committee members inquired about the direct application of the crc by Dutch courts43 and were informed that the courts had not yet reached a common position in this regard.44 The Committee did not raise the issue in its Concluding Observations. Committee members again raised the issue of the status of the crc and its direct application in subsequent reporting,45 but either no discussion ensued or no information was reported by the state. In any case, the Committee made no specific remarks in its Concluding Observations. According to academic commentators, in the Netherlands there is currently ‘legal uncertainty … about the direct effect of almost all crc provisions’.46 By contrast, France has been given a much harder time by the Committee. The direct application of the crc in domestic courts became an issue, starting with the initial report. Then France explained that some courts have rejected the direct application of the crc, given that it creates obligations for the state and cannot be directly applied by courts.47 Consequently, in the 1994 Concluding Observations, the Committee rightly expressed confusion about the status of the crc in the domestic legal order in the light of some judicial decisions that seemed inconsistent with France’s own constitution.48 As France did not volunteer information on the direct application of the crc in its second report, in the 2004 Concluding Observations, the Committee requested the state to provide information on the direct application of the crc in its next report.49 The state did, and provided a list of cases in which the crc has been directly applied and in which the direct application was rejected.50 In the 2009 list of issues, the Committee again raised the issue of the direct application of the crc.51 State representatives explained that not all international provisions are 42 43 44 45

Summary record of the 1521st (Chamber A) meeting 2010 para. 21. Summary record of the 579th meeting (1999) para. 29. Summary record of the 579th meeting (1999) paras. 29 & 44. Summary record of the 928th meeting (2004) para. 16; List of issues to be taken up in connection with the consideration of the third periodic report of the Netherlands (2008). 46 Limbeek M & Bruning M ‘The Netherlands: Two decades of the crc in Dutch case law’ in Liefaard T & Doek J (eds) Litigating the Rights of the Child: The un Convention on the Rights of the Child in Domestic and International Jurisprudence (2015) 95. 47 Compte rendu analytique de la 139ème seance (1994) para. 14. 48 Concluding Observations: France (1994) para. 12. 49 Concluding Observations: France (2004) para. 7. 50 Annex iii to the 3rd and 4th periodic report (submitted in 2008) provides a table of such cases. 51 ‘List of issues to be taken up in connection with the consideration of the third and fourth periodic reports of France’ (CRC/C/FRA/4) para. 2.

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considered of direct application by French courts, in that provisions which are seen as creating obligations between states cannot be invoked by individuals.52 Consequently, in its 2009 Concluding Observations, the Committee expressed concern at the limited number of provisions recognised as having direct effect,53 and recommended that the State party continue to take measures to ensure that the Convention, in its entirety, is directly applicable on the whole territory of the State party and that all the provisions of the Convention can be invoked as a legal basis by individuals and applied by judges at all levels of administrative and judicial proceedings.54 Some critical reflections are necessary here. The brief account above shows ambivalence and inconsistency by the Committee in its court-relevant pronouncements in the reporting process. It is disappointing, for example, that the Committee does not recommend that state reports and concluding observations be made available to the courts, as it does in regard to other entities.55 Further, the Committee is selective with the crc provisions about whose judicial application it seeks information from the states. It requires information on the judicial application of rights pertaining to family and alternative care, but not when the states report on civil rights and freedoms, disability, basic health and welfare, special protection measures, or education, leisure and cultural activities.56 Moreover, while there is interest by the Committee in the direct application of the crc by courts, this interest has been inconsistent. Ironically, though, of the monist countries referred to above, it is France that has the more ­convincing record of judicial direct application of the crc but which has attracted the most consistent attention and criticism from the Committee.57 While the Committee is interested in the direct application of the crc, it shows no (apparent) interest in the potential obstacles to it. For example, when the French representative explained the legal arguments raised by courts to reject the direct application of some crc norms, the Committee – without engaging with 52

53 54 55 56 57

Written Replies by the Government of France to the List of issues (CRC/C/Fra/Q/4) prepared by the Committee on the Rights of the Child in connection with the consideration of the third and fourth periodic report of France (CRC/C/FRA/4) 3. Concluding Observations: France (2009) para. 10. Concluding Observations: France (2009) para. 11. Guidelines 2010 para. 19(h). Guidelines 2010 para. 37. Although the Committee’s assessment is largely dependent on information provided by the state, such information may not always be reliable.

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these arguments – responded tersely by recommending the direct application of the entire crc.58 This is an unconstructive approach which is unlikely to persuade courts to apply the crc directly more often. Arguably, it also goes against what the crc expects of the Committee: to give constructive feedback to states on the difficulties they encounter in the implementation of the crc. It is not expected here that the Committee engage in lengthy discussions about the direct application of the crc in specific jurisdictions or prescribe to the courts which crc provisions should be applied directly. However, the Committee can ascertain the difficulties encountered by the courts in the direct application, respond to them in subsequent output (with due respect for the courts’ power to decide which norm is to be applied directly and which not) and be less sparse with its legal reasoning when it encourages the direct application of the crc.59 These measures would be helpful to courts in deciding on the direct application of crc norms. There are some positive signs in the work of the Committee. In the early reporting rounds, the Committee’s focus was on legal reform, policies and coordination. More recently, it has shown more interest in the effective implementation of the crc, and in this context, given more attention to the role of the courts. For example, it has begun referring specifically to court decisions in its concluding observations.60 Interestingly, the Committee has started requiring states to send its concluding observations to their supreme courts.61 Although this has been done inconsistently, it may indicate more confidence on the part of the Committee in what can be achieved if courts are aware of its views. 3.2 The General Comments In Section 2 above it was mentioned that amongst the factors affecting judicial usage of treaty body output are its relevance and quality of legal reasoning. As the Committee has not yet started hearing individual complaints, General Comments seem to be the outputs most relevant for the courts, as these provide a comprehensive reflection of the Committee’s view on the meaning of 58

59 60

61

Contrast this with the position of the Committee on Economic, Social and Cultural Rights vis-à-vis the position of Swiss courts denying direct effect to the right to strike (ila Report 2002 para. 60). This has been done by other treaty bodies, as mentioned in Section 3.2.2. With approval (Concluding Observations: Canada (2012) paras. 77, 57, 36) or disapproval (Concluding Observations: Belgium (2012) para. 72; Concluding Observations: Canada (2012) para. 44). For example, in Concluding Observations: Canada (2012) para. 89.

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the crc.62 I will therefore turn to these General Comments to assess to what extent they are useful to the courts. 3.2.1

General Comment No. 5 (2003) on General Measures of Implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, and para 6) General Comment No. 5 contains a clear indication that the Committee attaches significant importance to the contribution of the courts to the realisation of crc rights. This is reflected in the attention it gives to the status of the crc in the domestic order and the justiciability of crc rights. The Committee noted the need to clarify the extent of applicability of the crc in countries where the Convention has been incorporated or where international norms may be regarded as self-executing.63 For the Committee, the incorporation of the crc should result in a direct application of the Convention by national courts and other authorities, and, based on article 27 of the Vienna Convention on the Law of the Treaties, in the prevalence of the crc over legislation and common practice in case of conflict.64 In addition to its attention to the status of the crc, the Committee values the effective protection of the rights of children.65 The Committee asserts that as a result of the interdependence and indivisibility of human rights, all rights – civil and political, socioeconomic and cultural – should be regarded as justiciable66 and thus capable of being directly invoked before courts.67 After its General Comment No. 5, the Committee has indeed started a more focused line of questioning of the states where the crc has the potential to be directly applied. It remains problematic, however, that the Committee does not seem interested in the reasons why the crc is not directly applied in ­jurisdictions where this is possible. Instead, it embraces a dogmatic view that in monist systems the crc ought to be applied directly in its entirety. This is not helpful for the courts, which invoke legal arguments to justify their refusal to apply the crc directly. Most commonly it is argued that the Convention as a whole, or particular provisions, create obligations for the states or between 62

63 64 65 66 67

There is no explicit legal basis for the drafting of general comments in the crc. The legal basis is to be found in Rule 73 of the Rules of Procedure (Vandenhole W The Procedures 188). General Comment No. 5 para. 19. General Comment No. 5 para. 20. General Comment No. 5 para. 12. General Comment No. 5 para. 6. General Comment No. 5 para. 21.

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states, and thus cannot be invoked directly in national courts; and that crc provisions are not clear and complete enough to be applied directly by the courts. Although no doubt aware of these arguments, the Committee does little to address them apart from postulating that all rights are justiciable and advocating for the direct application of the entire crc. But are such trenchant views by the Committee correct? For example, are the numerous protection rights in the crc directly applicable or self-executing? Should they be so recognised? The same questions can be raised in the context of socioeconomic rights. Although there are legal arguments in support of a generous approach to the direct application of the crc,68 the Committee does nothing to stress them, leaving the courts with unconvincing statements about the direct application and justiciability of the entire crc. A second criticism is that the Committee’s view of the relationship between the crc and the national law is perhaps oversimplified and, for this reason, insufficiently persuasive for the courts. For instance, despite the Committee’s arguing that, in terms of article 27 of the Vienna Convention on the Law of the Treaties, the crc prevails over the national law in cases of conflict between the two, this ‘applies only within the international legal order; by itself, it is not decisive in domestic law’ (footnote omitted).69 The Committee’s position can be embraced therefore only in countries where the crc enjoys constitutional or supra-legislative status, a point which the Committee neglects to make. Thirdly, the Committee recognises that the requirement for access to effective remedies is ‘implicit’ rather than explicit in the crc, but it brushes the issue aside by indicating that this requirement is referred to in the other six major human rights treaties.70 The Committee points to the similarity between article 4 of the crc and articles 2 of the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights respectively, and enjoins its audience to approach the General Comments of the respective Committees as complementing General Comment No. 5.71 But this may result in a loss of child-centredness, and it fails to recognise that the crc contains child-specific rights on which the pronouncements of other treaty bodies may be rather sparse. As far as the access to judicial remedies is concerned, the distinction in wording between other international 68 69 70 71

Developing, for example, the idea that some aspects of certain rights are directly applicable while some are not. Nollkaemper A ‘The Netherlands’ in Sloss D (ed) The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (2009) 333. General Comment No. 5 para. 24. General Comment No. 5 para. 5.

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human rights instruments and the crc is seen in a different light by Murphy, who argues that this distinction is deliberate, which means that states are not obliged under international law to guarantee judicial remedies for all rights violations.72 Unfortunately, this is not simply an academic issue, and some national courts have raised the point when deciding against access to judicial remedies in the context of an alleged violation of a crc provision.73 It is problematic that in the face of often-raised criticism regarding the justiciability of the crc, the Committee does not address the issue frontally and in a more comprehensive fashion. It states, for example, that ‘economic, social and cultural rights, as well as civil and political rights, must be regarded as justiciable’.74 This is insufficient to cover the full array of crc rights, and it is not convincing when dealing with protection rights. Arguably, these rights do not fall squarely into one of the two categories above. Articles such as 33–36 are not formulated as rights but rather as state obligations. These are unique and powerful provisions, geared toward protecting children against all forms of exploitation. It is not clear what the position of the Committee is about the justiciability of such provisions. No doubt these are difficult provisions, but other Committees have been proactive and innovative in dealing with similar issues.75 3.2.2 Other General Comments General Comments may contain useful interpretations of treaty norms and guidance for the implementation of treaties. In a crc context, some General Comments address thematic issues and therefore do not explore comprehensively the legal content of individual crc provisions. Some General Comments do not mention the courts,76 but, on a positive note, the later General Comments give more focused attention to remedies, including judicial remedies.77 Below are a few observations about the Committee’s position on some court-relevant issues, 72

Murphy SD ‘Does international law obligate states to open their national courts to persons for the invocation of treaty norms that protect or benefit persons?’ in Sloss D (ed) The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (2009) 61–119. 73 See A, B and C and The Norwegian Association for Asylum Seekers (noas) (third-party intervener) v The State HR-2012-02399-P. 74 General Gomment No. 5 para. 25. Note that in paragraph 6 the Committee states that socioeconomic rights ‘should be regarded as justiciable’. 75 The Committee on Economic, Social and Cultural Rights (cescr), for example, has developed the concept of the minimum core obligations and dedicated two general comments to defining the legal obligations of the states and their implementation. 76 See, for example, the General Comments on education, hiv, early childhood, disabilities, rest and leisure. 77 General Comments Nos. 15 and 16, but also General Comment No. 8.

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respectively the status of the crc in national jurisdictions and the interpretation of crc provisions. 3.2.2.1 The Status of the crc General Comment No. 14 on the best interests of the child is the only General Comment which contains explicit remarks regarding the domestic status of a specific crc provision. In this Comment, the Committee states that article 3(1) ‘creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court’.78 Although they are not binding, it is possible that explicit statements by the Committee may have a positive effect on the recognition of direct effect to crc norms by courts in monist states. This approach was supported by some writers in the early days of the Convention.79 Similar statements in relation to specific human rights provisions made by other treaty bodies, albeit in a less prescriptive fashion, resonated with some courts in monist states.80 The haphazard approach taken by the Committee is, however, unfortunate. The Committee mentioned the self-executing character only in relation to article 3(1), and has not made similar statements in relation to other individual provisions, before or after General Comment No. 14. Surely the Committee could not have intended indirectly to suggest that other crc norms are not self-executing, a position that would be contrary to other statements it has made? Whether it should venture into making remarks about the direct application of specific crc norms is debatable. An advantage may be that such statements could generate debates and may assist the courts in clarifying their own position in relation to the direct application of the crc. But strong statements by the Committee on the direct application of the crc are not essential, and it might contribute more meaningfully to the courts recognising the direct effect of certain crc norms by clarifying the latter’s legal content through cogent legal interpretation. 78 79 80

General Comment No. 13 para. 6(a). Van Loon H ‘Synthesis of the discussions at the European Conference on Monitoring Children’s Rights’ in Verhellen E (ed) Monitoring Children’s Rights (1996) 219. ila 2002 Report 22–23 refers to K v L AG (1999) of the Swiss Federal Supreme Court (Bundesgericht), bge 125 iii 277, in which the Court accepted the direct application of the right to strike, being influenced, inter alia, by the views expressed by the Committee on Economic, Social and Cultural Rights (cescr) in its General Comment 3 para 5. The latter reads: ‘[…] there are a number of other provisions in the International Covenant on Economic, Social and Cultural Rights, including articles 3, 7 (a) (i), 8, 10 (3), 13 (2) (a), (3) and (4) and 15 (3) which would seem to be capable of immediate application by judicial and other organs in many national legal systems. Any suggestion that the provisions indicated are inherently non-self-executing would seem to be difficult to sustain.’

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3.2.2.2 The Interpretation of crc Norms As mentioned in Section 1, the complexity of the crc norms may be a disincentive for the courts to engage with the crc. However, if a norm were clarified through interpretation, there is a greater chance that the courts will integrate it in their legal reasoning. The Committee is in a good position to provide clarity on the normative content of the crc norms, and the General Comments are suitable for the task. An analysis of the General Comments reveals weaknesses in how the Committee engages with the legal content of the crc, which may affect the persuasiveness of its General Comments. First, at times the Committee uses imprecise legal language. For example, in General Comment No. 4, it declares that States ‘should undertake periodic review of the placement of adolescents in hospitals or psychiatric institutions’,81 although article 25 clearly recognises a right of the child to have his or her placement periodically reviewed. In General Comment No. 9, the Committee ‘recommends that States parties continue and strengthen their efforts to take into consideration the views of children with disabilities and facilitate their participation’,82 but omits to reiterate that being listened to is a right of children. At the opposite end of the spectrum are cases in which the Committee ‘creates’ new rights which have no obvious origin in the crc. In General Comment No. 9 on the rights of children with disabilities, the Committee makes the following statement: Allocation of budget: in the light of article 4 ‘… States parties shall undertake such measures to the maximum extent of their available resources …’ Although the Convention does not make a specific recommendation regarding the most appropriate percentage of the State b­ udget that should be dedicated to services and programmes for children, it does insist that children should be a priority. The implementation of this right has been a concern.83 It is difficult to ascertain what right the Committee is referring to, as neither the formulation of the relevant paragraph nor the context offer clarity. Is the Committee referring to article 23 rights? Or perhaps to a right of children to be given priority in budgeting? Or a right of disabled children to be given priority in budgets? Whatever the meaning, the point made by the Committee is too far-reaching for one to accept it based simply on the say-so of the Committee. 81 82 83

General Comment No. 4 para. 29. General Comment No. 9 para. 48. General Comment No. 9 para. 20. Emphasis added.

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Similarly, in General Comment No. 10 the Committee declared the right of detained children to be examined by a physician upon admission to a custodial facility, and stated that children should be recognised as having the right to make requests and complaints while in detention.84 The Committee makes no effort to ground these rights in the wording of the crc. In General Comment No. 16, discussing remedial mechanisms in the context of potential violations of the rights of children by businesses, the Committee mentions that non-judicial mechanisms should be provided without prejudice to the ‘right to judicial remedy’.85 But is there a right to a judicial remedy or is such a right confined to certain situations? Arguably, the issue is too complex for the Committee to make such a statement without further qualifications. This imprecision of legal language is dangerous from various perspectives. It may, for example, discredit the Committee as a legal body or the crc as a legal instrument. It may also undermine the recognition of a direct effect of crc provisions, contrary to the Committee’s own call for more crc provisions to be recognised as having direct effect. A second concern is that the Committee’s General Comments seldom clarify what is lawful and what is unlawful under the crc. General Comments often tell us what advances the rights and well-being of children but not what the state is legally bound to do. Although the Committee is not the only treaty body making policy-oriented recommendations rather than defining legal obligations,86 the ‘policy’ content of the crc General Comments – despite its importance87 – largely outweighs their ‘legal’ content.88 This makes them less useful for the courts, which operate largely with the dichotomy lawful-unlawful. The Committee also lacks transparency in its interpretive approaches, which is not appealing for the courts. Although the Committee sometimes refers to the Vienna Convention on the Law of the Treaties in its General Comments,89 it does not explicitly refer to articles 31 and 32 which govern the interpretation 84 85 86

87 88

89

General Comment No. 10 para. 89. General Comment No. 16 para. 10. Kälin W ‘Examination of state reports’ in Keller H & Ulfstein G (eds) un Human Rights Treaty Bodies: Law and Legitimacy (2012) 16–72, 56–57 (hereinafter ‘Examination of state reports’). Kälin (‘Examination of state reports’ 59) considers these policy comments as legitimate and essential for a treaty body in fulfilling its mandate. A comparison with the legal language of another treaty body may be useful, especially with that of the hrc. Concerns about the crc being ‘amenable to lawful/unlawful decisions’ has also been expressed by King (King M ‘Children’s Rights as Communication: Reflections on Autopoietic Theory and the United Nations Convention’ (1994) 57 Modern Law Review 385 at 395). Mechlem K ‘Treaty bodies’ points to gc 5 and gc 6, in which the Committee referred to articles 2, 19 and 27.

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of treaties.­The context, object and purpose of the crc are not highlighted by the Committee in its interpretation. The preparatory works are seldom mentioned.90 One would have expected that in the context of a convention often blamed for imprecise language and hortatory formulations, the Committee would at least start its interpretation process by enquiring into the will of the parties during the negotiation process, even if the interpretation finally embraced departs from it in the name of approaching the crc as a ‘living instrument’.91 Despite potential criticism of the position of the Committee, its non-legal views contain many valuable ideas which can be further developed by courts, such as the importance of effective, child-oriented legal protection, the interdependence of rights, and the positive and the negative obligations of the states. The Committee, however, does not systematically develop the legal aspects of its General Comments, leaving it to its legal audience to do so. The General Comments read more often than not as advocacy documents, dominated by advice to states in terms of what should be done to realise the rights of children. In my view, this makes the Committee’s comments less relevant for the courts; perhaps, having to troll through pages of policy input to distil legally relevant matters, courts prefer to rely on more directly relevant and more accessible interpretive aids. Nevertheless, some of its General Comments show that the Committee is capable of balancing legal content with advocacy and policy issues, and General Comment No. 14 is one such example. There, it tackled one of the most complex crc provisions, article 3(1) – viewed largely as aspirational and one to which it is difficult to assign legal content – and translated the article’s demands into conventional legal language that speaks to courts and other legal audiences yet without neglecting other entities with responsibilities concerning the rights of children. 4

Conclusion and Some Suggestions

The Committee takes an interest in the work of the courts, and sometimes its output is useful to them. However, it can do more to improve the relevance and persuasiveness of its output. This chapter criticises the Committee for occasional lack of legal rigour, lack of an interpretive method that secures the 90 91

General Comment No. 8 para. 20; General Comment No. 12 para. 27. A participant at the crc twenty-fifth anniversary conference asked a member of the crc Committee to what extent the travaux preparatoires influence the interpretation of the crc. The Committee member responded that she does not consider the travaux in her work.

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rationality and legitimacy of the interpretation,92 lack of transparency in its interpretation, and favouring policy input over clarification of the crc’s legal demands. These are concerns that may affect the legitimacy of the Committee’s output.93 Some suggestions can be made to remedy this state of affairs. The Committee could resort more consistently to conventional tools for the interpretation of international conventions, such as the Vienna Convention, to improve the legitimacy of its interpretations and their acceptability to the courts.94 Better balance is also needed between the legal and policy content of the Committee’s output, to enable a balanced development of all facets of the crc as well as preserve the complex function of the Committee. The Committee could consider revising General Comment No. 5, in order to give more clarity regarding the general obligations under the crc and the potential role of the courts (both in terms of deciding on the status of the crc as well as the implementation of the Convention). Following the example of the cescr, the Committee could suggest crc provisions which can be regarded as self-executing. This is not indispensable, however, and if such an approach is taken, it should be done cautiously, acknowledging that decisions on direct application belong to national courts, and in a manner which avoids stifling the dynamism of the direct application. The Committee could also consider creating a ‘minimum core obligations’ concept under the crc, possibly gravitating around the powerful general principles. This minimum core could then be applied by courts, regardless of the formal status of the crc in the national law, and may give some teeth to the more ‘difficult’ rights in the crc. The Committee should inquire more consistently into the potential difficulties encountered by the courts in applying the crc, as authorised by article 43(4) of the crc. Arguably, such queries are becoming increasingly important for the Committee’s monitoring work. After more than two decades of legal reform, the attention is now shifting to effective implementation. Since the courts play an important role in that process, it can be reasonably expected that the Committee dedicates more attention to the courts’ engagement with the crc and the effectiveness of their remedial function. The Committee could, for example, include in the ‘List of issues’ a standing requirement that information be provided about the direct application of the crc (where applicable), judicial engagement with the crc and important crc-relevant court decisions. The court-relevant feedback in the Concluding Observations should be more constructive, and go further than obvious suggestions such as training 92 93 94

Mechlem K ‘Treaty bodies’ 906. Van Alebeek R & Nollkaemper A ‘The legal status’ 413. Suggestion made by Mechlem K ‘Treaty bodies’.

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the judges. The Committee could also consistently recommend that its monitoring output be sent to the supreme courts. Do all these proposals entail expecting too much of the Committee? The question should perhaps be whether we are expecting more than what the Committee is mandated to do or what the Committee itself promises to do. Ascertaining and responding to difficulties in giving effect to the crc, including court-related challenges, are part of the Committee’s mandate according to article 43 of the crc. Requirements of coherence, consistency and clarity in interpreting the crc cannot be beyond the mandate of a committee which purports to clarify the meaning of the Convention. As a self-preservation strategy, it is also in the interest of the Committee to maintain its prestige and legitimacy through the quality and relevance of its output.95 This chapter places significant emphasis on the role of the Committee in contouring the legal aspects of the crc. This is not to say that the legal aspects of the crc are more important than its other dimensions; but when legal outcomes are expected of the crc (that is, direct application and judicial remedies), it ought to be approached as a legal instrument. Bibliography Books

Vandenhole W The Procedures Before the UN Human Rights Treaty Bodies: Divergence or Convergence? (2004) Antwerp & Oxford: Intersentia.



Chapters in Books

Himes JR ‘Monitoring children’s rights: Cutting through the confusion and planning for effective action’ in Verhellen E (ed) Monitoring Children’s Rights (1996) 113–27 The Hague: Martinus Nijhoff Publishers. Kälin W ‘Examination of state reports’ in Keller H & Ulfstein G (eds) UN Human Rights Treaty Bodies: Law and Legitimacy (2012) 16–72 Cambridge: Cambridge University. Limbeek M & Bruning M ‘The Netherlands: Two decades of the CRC in Dutch case law’ in Liefaard T & Doek J (eds) Litigating the Rights of the Child: The UN Convention on the Rights of the Child in Domestic and International Jurisprudence (2015) 89–104 Dordrecht: Springer. Murphy SD ‘Does international law obligate states to open their national courts to persons for the invocation of treaty norms that protect or benefit persons?’ in Sloss D (ed) The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (2009) 61–119 New York: Cambridge University Press. 95

The point regarding quality legal reasoning as a strategy by means of which treaty bodies could pursue their own interest was made by Mechlem K ‘Treaty bodies’.

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Nollkaemper A ‘The Netherlands’ in Sloss D (ed) The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (2009) 1–69 New York: Cambridge University Press. Van Alebeek R & Nollkaemper A ‘The legal status of decisions by human rights treaty bodies in national law’ in Keller H & Ulfstein G (eds) UN Human Rights Treaty Bodies: Law and Legitimacy (2012) 356–413 Cambridge: Cambridge University Press. Van Loon H ‘Synthesis of the discussions at the European Conference on Monitoring Children’s Rights’ in Verhellen E (ed) Monitoring Children’s Rights (1996) 211–21 The Hague: Martinus Nijhoff Publishers.



Journal Articles



International Reports

Mechlem K ‘Treaty bodies and the implementation of human rights’ (2009) 42 Vanderbilt Journal of Transnational Law 905.

CRC Committee Concluding Observations and other reporting documents, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en (accessed 9 November 2015). CRC Committee Compte rendu analytique de la 139ème seance CRC/C/SR.139 (1994) (France). CRC Committee Concluding Observations of the Committee on the Rights of the Child: Belgium CRC/C/BEL/CO/3-4 (2010). CRC Committee Concluding Observations of the Committee on the Rights of the Child: Canada CRC/C/CAN/CO/3-4 (2012). CRC Committee Concluding Observations of the Committee on the Rights of the Child: France CRC/C/15/Add.20 (1994). CRC Committee Concluding Observations: France CRC/C/15/Add.240 (2004). CRC Committee Concluding Observations of the Committee on the Rights of the Child: France CRC/C/FRA/CO/4 (2009). CRC Committee Concluding Observations of the Committee on the Rights of the Child: Romania CRC/C/ROM/CO/4 (2009). CRC Committee ‘List of issues to be taken up in connection with the consideration of the third periodic report of the Netherlands’ CRC/C/NLD/Q/3 (2008). CRC Committee ‘List of issues to be taken up in connection with the consideration of the third and fourth periodic reports of Romania’ CRC/C/ROM/Q/4 (2009). CRC Committee Summary record of the 579th meeting CRC/C/SR.579 (1999), the Netherlands. CRC Committee Summary record of the 928th meeting CRC/C/SR.928 (2004), the Netherlands. CRC Committee Summary record of the 1415th meeting CRC/C/SR.1415 (2009), Romania.

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CRC Committee Summary record of the 1521st (Chamber A) meeting CRC/C/SR.1521 (2010), Belgium. International Law Association Interim Report on the Impact of the Work of the United Nations Human Rights Treaty Bodies on National Courts and Tribunals (2002) Committee on International Human Rights Law and Practice, New Delhi Conference. International Law Association Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies (2004) Committee on International Human Rights Law and Practice, Berlin Conference.



General Comments



CRC Committee Reporting Guidelines

CRC Committee General Comments, available at http://www.ohchr.org/EN/HRBodies/CRC/Pages/CRCIndex.aspx (accessed 9 November 2015). CRC Committee General Comment No. 4 (2003) on adolescent health and development in the context of the Convention on the Rights of the Child CRC/GC/2003/4. CRC Committee General Comment No. 5 (2003) on general measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6) CRC/GC/2003/5. CRC Committee General Comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia) CRC/C/GC/8. CRC Committee General Comment No. 10 (2007) on children’s rights in juvenile justice CRC/C/GC/10. CRC Committee General Comment No. 12 (2009) on the right of the child to be heard CRC/C/GC/12. CRC Committee General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1) CRC/C/GC/14. CRC Committee General Comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24) CRC/C/GC/15. CRC Committee General Comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights CRC/C/GC/16.

CRC Committee ‘General Guidelines Regarding the Form and Content of Initial Reports to be Submitted by State Parties under Article 44, Paragraph 1(a), of the Convention CRC/C/5 (1991)’, available at http://www.bayefsky.com/tree.php/id/118/ misc/guides (accessed 17 January 2015). CRC Committee ‘General Guidelines Regarding the Form and Content of Periodic Reports to be Submitted by State Parties under Article 44, Paragraph 1(b), of the Convention CRC/C/58 (2005)’ (on file with the author). CRC Committee ‘Treaty-specific Guidelines Regarding the Form and Content of Periodic Reports to be Submitted by States Parties under article 44, paragraph 1(b),

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of the Convention on the Rights of the Child CRC/C/58/Rev.2 (2010)’ available at http://www.bayefsky.com/tree.php/id/118/misc/guides (accessed 17 January 2015).



International Conventions

Vienna Convention on the Law of the Treaties, 1969 UNTS (1155) 331. UN Convention on the Rights of the Child, 1989 UNTS (1577) 3.

Cases Bangladesh

Legal Aid and Services Trust (BLAST) and Farida Yeasmin and another [2010] Writ of petition 5684 (Supreme Court of Bangladesh, High Court Division).

Canada

Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) [2004] 1 S.C.R. 76, SCC 4.

Norway

A, B, C, D and Norwegian Association for Asylum Seekers (NOAS) (third party intervener) v The State, represented by the Immigration Appeals Board HR-2012-02398-P (Norway Supreme Court). A, B and C and The Norwegian Association for Asylum Seekers (NOAS) (third-party intervener) v The State HR-2012-02399-P (Norway Supreme Court).



South Africa



United Kingdom

DPP Transvaal v Minister for Justice and Constitutional Development and Others [2009] ZACC 8. J v National Director of Public Prosecutions and Another [2014] ZACC 13.

ZH (Tanzania) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC 4.



Internet Sources

Blake C ‘Normative instruments in international human rights law: Locating the g­ eneral comment’ (2008) Centre for Human Rights and Global Justice Working P ­ aper 17, available at http://www.chrgj.org/publications/docs/wp/blake.pdf ­ (accessed 17 January 2015). Committee on Economic, Social and Cultural Rights, General Comment 3: The nature of States Parties obligations (art. 2, para. 1) 14/12/90, available at http://www.unhchr .ch/tbs/doc.nsf/(Symbol)/94bdbaf59b43a424c12563ed0052b664?Opendocument (accessed 9 November 2015).

chapter 8

Access to Justice: A Fundamental Right for All Children Laurene Graziani Abstract Since children have rights, they should have access to justice in case these rights are violated. They are indeed fully-fledged persons to whom public authorities can be held accountable. Taking into account their victim status rather than their age or legal status, the procedural capacity of children has progressively been recognised by some international judicial authorities. Generally without legal capacity, minors do not have the ability to act directly before domestic courts but before some international judicial authorities. Supported by an emancipatory approach, this chapter highlights the recognition of the right to remedy for children and the new role of children on the judicial scene. Through an analysis of the international case law on the rights of the child, the different actors which aim to act on behalf of the victims are identified. It is important for children to act directly, but they face additional obstacles and need to be supported by adults. Thus, the chapter also examines specific obstacles faced by children and how they can be addressed. It shows that children need to be informed and assisted by adults and that representation by other actors, such as ngos, offers real advantages.

1 Introduction Ubi ius ibi remedium – There can be no right without a remedy1 The right to a remedy is a fundamental right, recognised in the Universal Declaration of Human Rights (arts. 7, 8 and 10) and the International Covenant on Civil and Political Rights (arts. 2.3, 14.1 and 26). The development of international human rights protection mechanisms offered a new opportunity for the victims of rights violations to compel states to comply with their obligations,

1 Parmentier S ‘The significance of mechanisms to monitor human rights at the international level’ in Verhellen E (ed) Understanding Children’s Rights (2004) 342.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_009

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to redress violations and to obtain compensation.2 According to Cançado Trindade, this evolution reflects a process of humanisation: in the move towards a new jus gentium, individuals became subjects of international law and gained a greater role in the international legal system.3 However, for many individuals, access to judicial remedies needs to be improved. The existence of obstacles has been highlighted in various studies; it is a complex issue, with legal, socioeconomic and political considerations to be taken into account.4 For children, accessing justice is also challenging, but their situation is unique as they often face another important obstacle: the principle of legal incapacity. Although children are entitled to a full array of rights, the exercise of their rights is still limited.5 An overview of the international case law on children’s rights6 demonstrates that the number of cases is low in comparison with the number of violations that occur daily.7 The adoption of the un Convention on the Rights of the Child (crc) 25 years ago played a key role in the evolution of the status of the child. The welfare approach, which is based on the needs of children, had been the dominant ideology worldwide during the twentieth century, and in terms of it children were regarded as mere objects of protection. The crc, however, encouraged the development of a new conception of childhood: children 2 On these mechanisms, see Tomuschat C Human Rights: Between Idealism and Realism 2 ed (2008); Kerbrat Y ‘Comité des droits de l’homme, et autres comités mis en place par les conventions conclues dans les cadre de l’ONU’ (2007) JurisClasseur Libertés 320. 3 Cançado Trindade AA Evolution du droit international au droit des gens. L’accès des individus à la justice internationale, le regard d’un juge (2008) 27. See also Cançado Trindade AA ‘International law for humankind: Towards a New Jus Gentium i’ (2005) rcadi 316 and Cançado Trindade AA ‘International law for humankind: Towards a New Jus Gentium ii’ (2005) rcadi 317. 4 International Council on Human Rights Policy (2004) Enhancing access to human rights. See also Lambert Abdelgawad E Preventing and sanctioning hindrances to the right of individual petitions before the European Court of Human Rights (2011). 5 See Van Bueren G The International Law on the Rights of the Child (1998) or Freeman M The Moral Status of Children: Essays on the Rights of the Child (1997). On the access to justice and the participation of children in proceedings, see Paré M ‘L’accès à la justice des enfants et leur droit de participation devant les tribunaux: quelques réflexions’ (2014) Revue générale de droit 44. 6 The author collected approximately 350 international decisions of justice on children’s rights violations in her PhD thesis on children and international judicial proceedings. 7 Some authors refer to thousands, even millions, of violations. Chagnollaud D & Drago G (ed) Dictionnaire des droits fondamentaux (2006) 401; Santos Pais M ‘The challenges of the implementation of the crc’ in Institut international des droits de l’enfant, United Nations High Commissioner for Human Rights 18 Candles. The Convention on the Rights of the Child Reaches Majority (2007) 102.

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are seen not only as vulnerable and in need of protection, but as endowed with the right to participate.8 This emancipatory approach is informed by the concept of child agency, which is premised on the understanding that children are active agents in their own lives and are able to make decisions.9 The concept helps to overcome the deadlock of the debate on the competence of the child10 by placing more importance on the child’s evolving capacities. According to Lansdown, this concept is essential for balancing the recognition of children as actors with their right to protection in accordance with their relative immaturity and youth. She adds that it provides the ‘basis for an appropriate respect for children’s agency without exposing them prematurely to the full responsibilities normally associated with adults’.11 Despite progress having been made, the status of the child remains weak. In 2009 Yanghee Lee, a former President of the crc Committee, asked: ‘Are children really recognized as true holders of rights? Are the States doing everything possible for children to exercise their rights?’12 Indeed, the crc is often considered as a declaration of good intentions and not a legally binding instrument. Cantwell stresses that the ‘charity legacy is still an extremely powerful brake on efforts to maximise the impact of the crc’.13 Furthermore, the right to be heard has been progressively recognised, but the possibility for children to directly access national courts is often limited by the principle of legal incapacity, which requires them to have legal representatives.14 The crc itself does not recognise the right to a remedy explicitly,15 and the debates surrounding the adoption of the Guidelines on a child-friendly justice or the 3rd

8

9

10 11 12 13 14 15

On this evolution, see Verhellen E Convention on the Rights of the Child: Background, Motivation, Strategies, Main Themes 3 ed (2000). The participatory rights of the child are listed in arts. 12 to 17 of the crc. Nieuwenhuys O ‘The wealth of children: Reconsidering the child labour debate’ in Qvortrup J Studies in Modern Childhood, Society, Agency, Culture (2005); Honwana A ‘Innocents et coupables. Les enfants-soldats comme acteurs tactiques’ (2000) Politique africaine 80. Hanson K ‘Schools of thought in children’s rights’ in Liebel M (ed), Children’s Rights from Below: Cross-Cultural Perspectives (2012) 63–79. Lansdown G ‘The evolving capacities of the child’ (2005). Lee Y ‘Reasons and timing for a communications procedure under the Convention on the Rights of the Child’ (2009) un doc. A/HRC/WG.7/1/CRP.6. Cantwell N ‘The Convention on the Rights of the Child, Vini, vici … et vinci?’ in Verhellen E (ed) Understanding Children’s Rights (2004) 407. For instance, the right to be heard, mentioned in articles 389–3 of the same Code, requires children to be represented by their legal representative. De Boe C ‘La place de l’enfant dans le procès civil’ (2009) Journal des tribunaux 6360.

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Protocol to the crc showed that recognition of the child’s procedural capacity is contested.16 The European Convention on the Exercise of Children’s Rights, adopted in 1996, is an exception as it already recognised the right of children to exercise their rights directly or through other persons or bodies.17 In 2003, the crc Committee stressed that it was important for children to be able to access justice. The Committee established the principles of child-friendly justice, underlining that judicial remedies should also be adapted according to the specific needs and procedural rights of children.18 In its General Comment No. 9 on the rights of the child with disabilities, the Committee reaffirmed that judicial remedies should be accessible and adapted.19 Many experts also supported the recognition of the right to remedy for children. For instance, David maintained that children are fully-fledged persons to whom public authorities can be held accountable. Since children have rights, they should have access to justice in case of violations of their rights.20 This chapter discusses the recognition of the international procedural capacity of the child and the practice in international judicial mechanisms, specifically the European and Inter-American Courts of Human Rights, both of which play a significant role in the application and interpretation of children’s rights. Taking into account the specific condition of minors, these courts have highlighted that children are entitled to special protection. With the assistance of some quasi-judicial bodies, they have developed important case law on the right to life, the right to identity, the right to a fair trial, and so on. The chapter examines the practice followed before the crc Committees, which allow children to exercise their rights directly, and the European Committee on Social Rights, which makes it possible for non-governmental organisations (ngos) to submit complaints on behalf of groups of victims.

16

17 18

19 20

See, for instance, Vandekerckhove A ‘Premiers pas vers une justice adaptée aux enfants’ (2011) Journal du Droit des Jeunes Belgique 301 or De Beco G ‘The Optional Protocol to the Convention on the Rights of the Child on a communications procedure: Good news?’ (2013) 13(2) Human Rights Law Review. Art. 1§2 of the European Convention on the Exercise by Children of their Rights. Committee on the Rights of the Child, General Comment No. 5 on general measures of implementation of the Convention on the Rights of the Child (2003) un doc. CRC/ GC/2003/5. Committee on the Rights of the Child, General Comment No. 9 on the rights of the child with disabilities (2006) un doc. CRC/C/GC/9 § 42–43. David P ‘Implementing the rights of the child: Six reasons why the human rights of children remain a constant challenge’ (2002) International Review of Education 48.

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Highlighting challenges that children face in their quest for justice, this chapter stresses that children have a right to a remedy as any other individuals do, yet they need to be protected and to receive support. The debate on the competence of the child encompasses the paternalist or protectionist approach and the emancipatory approach, with the image projected of the child varying according to the ideological perspective of the actor.21 For some authors, the debate reveals a tension between article 3 (protection) and article 12 (participation) of the crc,22 but another interpretation of the crc is possible. The most important goal is to find a balance between protection and participation, while bearing in mind that children should not be treated as adults.23 Taking an active part in international judicial proceedings, children have demonstrated that they are not incompetent but agents in their own lives; nevertheless, this process of participation needs to be adapted and guided by adults who are able to inform, assist and even represent the victims. This chapter is divided into two main sections. The first deals with the recognition of the international procedural capacity of the child, and the second highlights the limits of direct access to justice for children. 2

The Recognition of the International Procedural Capacity of the Child

Over the last sixty years, the protection of human rights has been strengthened. The possibility for individuals to access international judicial and quasijudicial mechanisms contributed to the consolidation of their legal capacity and the reinforcement of their rights.24 Most of those mechanisms allow children, or their representatives, to act upon violations of their rights. This section discusses the practice before the European Court of Human Rights (ECtHR), as it was the first international body to recognise the child’s procedural capacity. Since the Court makes no distinction between adults and children, foreigners and nationals, or men and women, everyone who claims 21 22 23 24

See Hanson K ‘Schools of thought in children’s rights’. See Archard D Children: Rights and Childhood 2 ed (2004) and Verhellen E Convention on the Rights of the Child: Background, Motivation, Strategies, Main Themes. Hanson K ‘Schools of thought in children’s rights’. See also Youf D Penser les droits de l’enfant (2002). Kerbrat Y ‘Comité des droits de l’homme, et autres comités mis en place par les conventions conclues dans les cadre de l’ONU’ (2007) JurisClasseur Libertés 320 15.

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to be a victim has the right to submit a complaint.25 The first petitions were lodged by children in the 1970s,26 but the number of applications brought by children has increased since the adoption of the crc. This practice is undergoing continuous development, and other international judicial and quasi-judicial bodies have also recognised the child’s procedural capacity. 2.1 The Practice before the European Court of Human Rights Minors are allowed to bring a case before the ECtHR. One of the most important criteria established by article 34 of the ECtHR is to be a victim, before any other consideration. ‘Any’ person claiming to be a victim of a violation of rights set forth in the echr can therefore submit an application. The legal capacity of the petitioner is not a requirement, but he or she has to be directly and personally affected. In consequence, children can submit a petition before the Court even if they are not entitled to access national judicial remedies.27 The profile of those children is diverse: boys, girls, young children and foreigners have lodged complaints before the European Court. For example, Tabitha, a five-year-old girl from the Congo, was arrested in Belgium while travelling with her uncle. The mother, who was granted refugee status in Canada, asked him to bring the girl, but he did not have official documents in his possession. After being placed in a detention centre for migrants for several weeks, alone among adults, Tabitha was sent back to her country of origin without any assistance. The Court took the opportunity to highlight that minors require special protection in any situation, even if they entered a territory illegally.28 Children invoked different rights depending on their situations. Many petitions filed by minors concerned the right to a fair trial, such as two 10-year-old boys accused of the murder of James Bulger. They were judged in horrific conditions by a tribunal for adults. The European Court stressed that children are entitled to special treatment and that proceedings should be adapted to their specific condition.29 Many others were victims of violence, such as a Turkish teenager, suspected of belonging to the Kurdistan Workers’ Party (pkk), who 25

Tulkens F ‘The European Convention on Human Rights and children’s rights’ in Council of Europe International Justice for Children (2008) 18. 26 European Comm.H.R. X. et Y. c. Pays-Bas no. 6753/74 (1974), European Ct H.R. Tyrer c. Royaume-Uni no. 5856/72 (1978). 27 Berro-Lefèvre I ‘Improving children’s access to the European Court of Human Rights’ in Council of Europe International Justice for Children (2008) 70–1. 28 ECtHR Mubilanzila Mayeka and Kaniki Mitunga v Belgium no. 13178/03 (2006). 29 ECtHR T. v United Kingdom [gc] no. 24724/94 (1999) and ECtHR V. v Royaume-Uni [gc] no. 24888/94 (1999).

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was raped and tortured while in detention.30 Other cases concerned the right to private life, in particular data protection for minors in conflict with the law or in the context of cyber-bullying.31 Groups of children can also act collectively. In two cases, Roma children, from nine to 15 years old, brought a petition before the European Court after suffering discrimination in access to education due to their ethnic origins. In the first case, 18 pupils from the Czech Republic were placed in a special school for children with disabilities.32 In the second, nine children from Croatia were forced to study in separate classrooms.33 Children can also be co-petitioners, given that they often act together with their parents. Most of those cases, which concerned violations of the right to family life, deal with the placement of children in institutions,34 international abduction35 or the separation of illegal migrant families.36 2.2 A Practice undergoing Development The possibility for children to submit a petition is undergoing continuous development. The un Human Rights Committee has already examined a few complaints submitted by children, such as a Jamaican teenager sentenced to life in prison or illegal migrants in Europe. One of the latter was an unaccompanied minor from China. He travelled first with his mother to Kiev but then arrived alone in the Netherlands, where he asked for asylum. The authorities considered that Chinese children were not facing any particular risk in their country of origin, but the Human Rights Committee concluded that he would be living without his family and forced to beg in the street.37 Some illegal migrants also acted with their parents,38 and four Norwegian couples accompanied by their children complained about religious education.39 Other un committees – such as the Committee against Torture, the Committee on the Elimination of Discrimination against Women, the Committee 30 ECtHR Aydin v Turkey no. 23178/94 (1997). 31 ECtHR S. et Marper c. Royaume-Uni [gc] no. 30562/04 and 30566/04 (2008) and ECtHR k.u. c. Finlande no. 2872/02 (2008). 32 ECtHR D.H. and al. v Check Republic [gc] no. 57325/00 (2007). 33 ECtHR Oršuš et autres c. Croatie [gc] no. 15766/03 (2010). 34 ECtHR M.D. et al. c. Malte no. 64791/10 (2012). 35 ECtHR Neulinger et Shuruk c. Suisse [gc] no. 41615/07 (2010). 36 ECtHR Popov c. France no. 39472/07 and 39474/07 (2012). 37 H.R. Com. Damian Thomas v Jamaica no. 800/1998 (1999); H.R. Com. Mohamed El-Hichou v Denmark no. 1554/2007 (2010); H.R. Com. x.h.l. v Netherlands no. 1564/2007 (2011). 38 See, for example, H.R. Com. k.f.a.g. and al. v Australia no. 1127/2002 (2013). 39 H.R. Com. Leirvåg v Norway no. 1155/2003 (2004).

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on the Elimination of Racial Discrimination and the Committee on the Rights of Persons with Disabilities – also have the possibility to examine communications brought by children. In the Inter-American system, an increased number of cases has been examined since the end of the 1990s,40 but no petition has been submitted by a child acting on his or her own behalf. Article 44 of the American Convention on Human Rights (achr), on the right to individual petition, does not exclude this possibility, and the Court might examine petitions lodged by children. In its Advisory Opinion on the juridical condition and human rights of the child, the judges stressed that children are true legal persons.41 According to Paulo Sérgio Pinheiro, former Rapporteur on the rights of the child of the Inter-American Commission: It is quite clear today that there is nothing intrinsic to International Human Rights Law that impedes or renders it impossible for children to enjoy international legal personality. Article 44 of the American Convention on Human Rights does not impose any requirement concerning the legal capacity of individuals. A child may consequently file an individual petition with the Commission even if he or she is not entitled to bring an action before the national courts.42 The creation of two specific mechanisms for children – the crc Committee and the African Committee of Experts on the Rights and Welfare of the Child – represents the most important development, even though these mechanisms are relatively new. The procedure before the crc Committee was opened after the entry into force of the 3rd Protocol to the crc in 2014. The African Committee of Experts on the Rights and Welfare of the Child was set up in 1990 after the adoption of the African Charter on the Rights and Welfare of the Child. However, the first case, dealing with discrimination against Nubian children in Kenya, was examined only in 2011.43 The possibility for children to claim redress before special bodies is a sign of major progress, as these bodies were created especially for them. Being experts 40 41 42 43

Inter-Am. Ct. H.R. Villagran Morales and al. (« Street Children ») v Guatemala Series. C no. 63 (1999). Inter-Am. Ct. H.R. Series. A no. 17 Juridical status and human rights of the child Advisory Opinion oc-17/02 (2002) §28. Pinheiro PS ‘Reasons and timing to elaborate a communications procedure under the Convention on the Rights of the Child’ (2009) un doc. A/HRC/WG.7/1/CRP.4 10. Afr. Com. ihrda and Open Society Justice Initiative (osji) v Kenya no. 002/09 (2011).

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in that field, members are able to follow a child rights approach and develop pertinent case law. These proceedings also offer new perspectives, as children have the possibility to denounce violations of their specific rights. The crc, completed by its Protocol, and the African Charter on the Rights and Welfare of the Child both contain a series of rights and protections that do not appear in other human rights instruments, such as the right to play, the right to education, the prohibition of the death penalty and the protection of child soldiers.44 A review of the international case law on children’s rights demonstrates that most of the complaints brought by children deal with violence, juvenile justice and illegal migration. Furthermore, the right to a remedy is recognised for every person without respect to age, but most of the complaints are submitted by adolescents. Therefore, it can be concluded that, despite progress, access to justice is limited to particular kinds of situation and to particular categories of children. 3

The Limits of Direct Access to Justice for Children

The emancipatory approach contributed to the changed status of children, who are now seen as active agents in judicial proceedings rather than passive victims. However, access to justice is still limited for them. An overview of the international case law on children’s rights shows that, in comparison with a huge number of violations, international judicial bodies rarely deal with cases brought by children themselves. The crc Committee highlighted that ‘children’s special and dependent status creates real difficulties for them in pursuing remedies for breaches of their rights’.45 This section of the chapter examines the obstacles that children may face and how they can be addressed. If children need to be informed and assisted by adults, representation by other actors, such as ngos, offers real advantages. 3.1 Specific Obstacles Faced by Children Children face political, socioeconomic and cultural impediments to justice, but their legal incapacity remains one of the main obstacles.46 Children are generally considered to be incompetent. This conception of childhood, mostly 44 45 46

See, for example, arts. 28, 31 and 37 crc. Committee on the Rights of the Child, General Comment No. 5 on general measures of implementation of the Convention on the Rights of the Child § 24. Tulkens F ‘The European Convention on Human Rights and Children’s Rights’.

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supported by an adult-centrist approach, tends to isolate children and weaken their potential,47 in addition to which it limits their access to judicial remedies. Being legally competent is crucial for reaching national courts. The exhaustion of local remedies is also a requirement to bring a complaint before a judicial or quasi-judicial international mechanism.48 Because children might not have the possibility to exhaust local remedies as required, the international judicial bodies have admitted some exceptions. For instance, the ECtHR recalled that this rule is based on the assumption that domestic systems provide an effective remedy in respect of the alleged breach.49 Similarly, the African Commission has highlighted that local remedies can be inadequate, ineffective, and even unavailable in some regions.50 The 3rd Protocol to the crc does not absolve the petitioner of this requirement, but two exceptions are accepted: if the application of remedies is unreasonably prolonged and if it does not offer reasonable prospects of success.51 In her report on the access to justice for children, the High Commissioner for Human Rights enumerated other barriers. First, she underlined that ‘[t]he complexity of justice systems makes them difficult to understand for children’, adding that ‘[c]hildren are often unaware of their rights and the existence of services, lacking information about where to go and whom to call to benefit from advice and assistance’.52 She continued: The justice system is often intimidating for children. They may be afraid to make complaints out of fear of harassment, further stigmatisation, abandonment or reprisals against them or their families. They may also lack trust and confidence that their complaints will be taken seriously and fairly assessed. In addition, in some parts of the world, it is culturally 47

Verhellen E Convention on the Rights of the Child. Background, motivation, strategies, main themes. 48 See, for example, art. 41§1 c of the International Covenant on Civil and Political Rights or art. 46 of the American Convention on Human Rights. 49 ECtHR T. v United Kingdom [gc] § 55. 50 Afr. Comm. Constitutional Rights Project v Nigeria no. 60/91 (1995). See Boukongou JD ‘Le système africain de protection des droits de l’enfant. Exigences universelles et prétentions africains’ (2006) 5 Les Cahiers de la recherche sur les droits fondamentaux 105. 51 Art. 7 (e) of the 3rd Protocol to the crc. 52 Human Rights Council ‘Access to justice for children. Report of the United Nations High Commissioner for Human Rights’ (2013) un doc. A/HCR/25/35 § 14. In reference to Special Representative of the Secretary-General on Violence against Children and the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography Joint report (2012) un Doc. A/HCR/16/56 § 6.

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and socially unacceptable for children to lodge complaints and claim redress. Doing so would place children at great risks of reprisals, including violence, intimidation, exclusion and ostracism. Violence against children is also often considered as a fact of life rather than a rights violation that could be brought to court.53 Indeed, in view of these kinds of factors, the Guidelines on child-friendly justice have stressed the importance of the fundamental right to information and assistance.54 In order to exercise their rights, children need to be adequately informed.55 The role of the media is highlighted in article 17 of the crc, but there are many other sources of information, such as parents, teachers, siblings and friends. Access to information is crucial. Many experts point out that materials should be available in places such as schools, police stations and health centres.56 Some of them maintain that education on children rights is fundamental and should be included in school curricula.57 New technologies are also a promising tool, given that children are particularly active on social networks.58 However, it is essential to use child-friendly language and to develop tools in collaboration with children in order to ensure the appropriateness of those materials.59 Children also need to be assisted and supported during the legal process. Depending on their needs, victims may receive different types of assistance. 53

54 55 56

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Special Representative of the Secretary-General on Violence against Children and the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography Joint report § 15. Council of Europe, Guidelines on child-friendly justice, Part iv. A. on the general elements of child-friendly justice. Berro-Lefèvre I ‘Improving children’s access to the European Court of Human Rights’ and Tulkens F ‘The European Convention on Human Rights and children’s rights’. Oral statement of Maria Santos Pais, Special Representative of the Secretary-General on Violence against Children, during the Human Rights Council day of discussion on children’s rights on the theme of ‘access to justice for children’ in March 2014. David P ‘Implementing the rights of the child: Six reasons why the human rights of children remain a constant challenge’. See also the Council of Europe Guidelines on childfriendly justice (Part v). Human Rights Council ‘Access to justice for children. Report of the United Nations High Commissioner for Human Rights’ § 18. Santos Pais M ‘Human Rights Council Working Group and an optional protocol to the Convention on the Rights of the Child to provide a communications procedure’ (2009) un doc. A/HRC/WG.7/1/CRP.7. After the adoption of the 3rd Protocol to the crc, the Special Representative designed a brochure in collaboration with children (see http://srsg .violenceagainstchildren.org/story/2013-09-19_898).

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Many children require financial support. Children should have the right to free legal aid;60 some international judicial bodies, such as the ECtHR, cover the costs of legal proceedings.61 Being assisted by a lawyer right at the outset of the legal process is also fundamental. Lawyers play an important role in keeping children well-informed and ensuring their protection; as with other professionals working with children, lawyers should receive interdisciplinary training.62 3.2 Representation by Parents and Other Actors Accessing justice may be particularly challenging for children. The whole process can be lengthy and exhausting. Thus, is it really in the best interest of the child to endure such an experience? It is important to take into consideration the submission of the complaint by an intermediary acting on behalf of the child, in the first place by the parents. Many parents actually act on behalf of their children. Most of those cases deal with family matters such as the right to custody, international abduction or adoption.63 Parents also act in cases concerning the expulsion of illegal migrants or in situations of armed conflict. For example, a woman submitted a complaint before the European Court after the death of her seven-year-old daughter, who was killed in an attack by an armed group in the Russian province of Dagestan.64 Other family members might intervene when parents are absent or not able to defend their children. For instance, a grandmother acted on behalf of a girl abducted during the dictatorship in Argentina. The girl, who was found seven years after her disappearance, was living with a woman who pretended to have adopted her at birth.65 The presence of a third party, such as a curator ad litem, is also essential when children are separated from their parents, for example when children are neglected by them66 or in the case of unaccompanied child migrants.67 60 Council of Europe Guidelines on child-friendly justice, Part iv. D. 2. § 38. 61 ECtHR Erhan Dinç v Turkey no. 28551/06 (2010) § 37 and ECtHR d.g. v Ireland no. 39474/98 (2002). See also European Ct H.R. s.c. v United Kingdom no. 60958/00 (2004); European Ct H.R. Güveç v Turkey no. 70337/01 (2009); European Ct H.R. Okkali v Turkey no. 52067/99 (2006). 62 Council of Europe Guidelines on child-friendly justice, Part iv. D. 2. § 39 and § 41. 63 See, for example, ECtHR Marckx v Belgium no. 6833/74 (1979) about the status of children born out of wedlock. 64 ECtHR Abdurashidova c. Russie no. 32968/05 (2010). 65 H.R. Com. Darwinia Rosa Monaco de Gallichio c. Argentine no. 400/1990 (1995). 66 ECtHR E. and other v United Kingdom no. 33218/96 (2002). 67 See, for example, European Ct H.R. Rahimi v Greece no. 8687/08 (2011).

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ngos are particularly active in the Inter-American context, where they represent most of the victims under the age of 18 years. The Centre for Justice and International Law (cejil), for example, submitted several petitions that gave the Inter-American Court the opportunity to examine cases concerning extra-judicial killings of children;68 forced disappearance of children in armed conflict;69 detention of children;70 abduction of children during a military dictatorship;71 massacres of indigenous communities;72 and the right to a nationality.73 The first petition examined by the African Committee was also brought by two ngos.74 In Europe, ngos do not have the possibility to act on behalf of children before the European Court, but the proceeding before the European Committee on Social Rights is a real opportunity for them to denounce violations of child rights. Particular attention must be paid to the advantages of collective actions. For instance, the proceeding before the European Committee on Social Rights is easy and brief,75 but also gives the possibility for an ngo to act on behalf of several victims and, at the same time, to highlight a specific problem in a country. dci-Belgium and dci-Holland denounced the conditions in which child migrants are living,76 and three ngos lodged a complaint following the expulsion of Roma from France in 2010.77 Another advantage is that victims have 68

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70 71 72 73

74 75 76 77

Inter-Am. Ct. H.R. Villagran Morales and al. (« Street Children ») v Guatemala Series. C no. 63 (1999); Inter-Am. Ct. H.R. Servellón-García and al. v Honduras Series. C no. 152 (2006) (co-petition with Casa Alianza). Inter-Am. Ct. H.R. Serrano Cruz Sisters v El Salvador Series. C no. 120 (2005) (co-petition with Asociación Pro-Búsqueda de Niñas y Niños Desaparecidos); Inter-Am. Ct. H.R. Molina Theissen v. Guatemala Series. C no. 106 (2004) (co-petition with Grupo de Apoyo Mutuo). Inter-Am. Ct. H.R. Juvenile Reeducation Institute v Paraguay Series. C no. 112 (2004) (copetition with Fundation Tekojojá). Inter-Am. Ct. H.R. Gelman v Uruguay Series. C no. 221 (2011) (co-petition with the family). Inter-Am. Ct. H.R. Massacre of Mapiripán v Colombia Series. C no. 134 (2005) (co-petition with the Colectivo de Avogados ‘José Alvear Restrepo’). Inter-Am. Ct. H.R. Yean and Bosico Children v Dominican Republic Series. C no. 130 (2005) (co-petition with the International Center for Human Rights, Berkeley University and the Mouvement des femmes haitiennes-dominicaines). Afr. Com. ihrda and Open Society Justice Initiative (osji) v Kenya. Končar P ‘The protection of children’s rights through the European Social Charter’ in Council of Europe, International Justice for Children (2008) 38–39. e.c.s.r. Defence for Children International v Netherlands no. 47/2008 (2009); e.c.s.r. Défense des enfants International (dei) v Belgium no. 69/2011 (2012). e.c.s.r. Centre on Housing Rights and Evictions (cohre) v France no. 63/2010 (2011); e.c.s.r. Forum européen des Roms et des Gens du Voyage (ferv) v France no. 64/2011 (2012); e.c.s.r. Médecins du Monde-International v France no. 67/2011 (2012).

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their names kept confidential and do not bear the burden of the proceedings. The 3rd Protocol to the crc, in its first draft, created the possibility for ngos to bring collective actions, but this option was removed in the final version.78 An individualist approach to human rights79 might limit collective actions, which are rarely accepted at the international level. 4 Conclusion If children are to be regarded truly as the subjects of rights, they should have the possibility to claim redress. The recognition of the procedural capacity of children at the international level reflects a major evolution in this field: children are not passive victims but active agents. However, they cannot act without the assistance of adults. The representation of children by parents and other members of the family, as well as children’s rights defenders, is essential. Furthermore, children should be protected from manipulation. The 3rd Protocol to the crc includes some safeguards, such as allowing the crc Committee to decline any communication if it is not considered to be in the child’s best interest.80 Children have a right to remedy as any other individual has, but their participation should always be complemented by protective measures. Access to justice needs be fully adapted, and professionals entering into contact with children should be trained to ensure they are protected. Nevertheless, children are not passive and should even be considered as partners. They can guide adults in this process of adaptation, but adults need to have specific competences to be able to collaborate with them and recognise the important role that children can play. As Janusz Korczak stated as early as 1929: ‘The company of children can indeed be tiring. But this is not because we have to strain to lower ourselves to their level. On the contrary: the exertion lies in our having to raise ourselves to their level, to their feelings, so as not to hurt them.’81

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Newell P ‘Submission to Open-ended Working Group of the possibility of elaborating an Option protocol to provide a communications procedure for the Convention on the Rights of the Child’ (2009) un doc. A/HRC/WG.7/1/CRP.2. Decaux E Droit international public 7 ed (2010) 240. Art. 3§2 of the 3rd Protocol to the crc. Commissioner for human rights, Janusz Korczak The Child’s Right to Respect (2009) 15.

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Bibliography Books

Archard D Children: Rights and Childhood 2 ed (2004) Abingdon: Routledge. Cançado Trindade AA Evolution du droit international au droit des gens. L’accès des individus à la justice internationale, le regard d’un juge (2008) Paris: Pedone. Chagnollaud D & Drago G (ed) Dictionnaire des droits fondamentaux (2006) Paris: Dalloz-Sirey. Decaux E Droit international public 7 ed (2010) Paris: Dalloz. Freeman M The Moral Status of Children: Essays on the Rights of the Child (1997) La Haye: Martinus Nijhoff. Lambert Abdelgawad E Preventing and Sanctioning Hindrances to the Right of Individual Petitions before the European Court of Human Rights (2011) Cambridge: Intersentia. Tomuschat C Human Rights: Between Idealism and Realism 2 ed (2008) Oxford: Oxford University Press. Van Bueren G The International Law on the Rights of the Child (1998) La Haye: Kluwer Law International. Verhellen E Convention on the Rights of the Child: Background, Motivation, Strategies, Main Themes 3 ed (2000) Leuven: Garant. Youf D Penser les droits de l’enfant (2002) Paris: PUF.



Chapters in Books

Berro-Lefèvre I ‘Improving children’s access to the European Court of Human Rights’ in Council of Europe International Justice for Children (2008) Strasbourg: Council of Europe Editions. Cantwell N ‘The Convention on the Rights of the Child, Vini, vici … et vinci?’ in Verhellen E (ed) Understanding Children’s Rights (2004) Ghent: Ghent University. Hanson K ‘Schools of thought in children’s rights’ in Liebel M (ed) Children’s Rights from Below: Cross-Cultural Perspectives (2012) Basingstoke: Palgrave Macmillan. Končar P ‘The protection of children’s rights through the European Social Charter’ in Council of Europe International Justice for Children (2008) Strasbourg: Council of Europe Editions. Nieuwenhuys O ‘The wealth of children: reconsidering the child labour debate’ in Qvortrup J Studies in Modern Childhood, Society, Agency, Culture (2005) Basingstoke: Palgrave MacMillan. Parmentier S ‘The significance of mechanisms to monitor human rights at the international level’ in Verhellen E (ed) Understanding Children’s Rights (2004) Ghent: Ghent University.

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Santos Pais M ‘The challenges of the implementation of the CRC’ in Institut international des droits de l’enfant, United Nations High Commissioner for Human Rights 18 Candles. The Convention on the Rights of the Child Reaches Majority (2007) Sion: Institut international des droits de l’enfant. Tulkens F ‘The European Convention on Human Rights and children’s rights’ in Council of Europe, International Justice for Children (2008) Strasbourg: Council of Europe Editions.

Articles

Boukongou JD ‘Le système africain de protection des droits de l’enfant. Exigences universelles et prétentions africains’ (2006) 5 Les Cahiers de la recherche sur les droits fondamentaux. Cançado Trindade AA ‘International law for humankind: Towards a New Jus Gentium I’ (2005) RCADI 316. Cançado Trindade AA ‘International law for humankind: Towards a New Jus Gentium II’ (2005) RCADI 317. David P ‘Implementing the rights of the child: Six reasons why the human rights of children remain a constant challenge’ (2002) International Review of Education 48. De Beco G ‘The Optional Protocol to the Convention on the rights of the child on a communications procedure: Good news?’ (2013) Human Rights Law Review 13(2). De Boe C ‘La place de l’enfant dans le procès civil’ (2009) 6360 Journal des tribunaux. Honwana A ‘Innocents et coupables. Les enfants-soldats comme acteurs tactiques’ (2000) Politique africaine 80. Kerbrat Y ‘Comité des droits de l’homme, et autres comités mis en place par les conventions conclues dans les cadre de l’ONU’ (2007) JurisClasseur Libertés 320. Paré M ‘L’accès à la justice des enfants et leur droit de participation devant les tribunaux: quelques réflexions’ (2014) Revue générale de droit 44.

Miscellaneous

Commissioner for Human Rights, Janusz Korczak The Child’s Right to Respect (2009) Strasbourg: Council of Europe. Committee on the Rights of the Child, General Comment No. 5 on general measures of implementation of the Convention on the Rights of the Child (2003) UN doc. CRC/ GC/2003/5. Committee on the Rights of the Child, General Comment No. 9 on the rights of the child with disabilities (2006) UN doc. CRC/C/GC/9. Council of Europe Guidelines on child friendly justice (2010). Human Rights Council ‘Access to justice for children. Report of the United Nations High Commissioner for Human Rights’ (2013) UN doc. A/HCR/25/35.

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International Council on Human Rights Policy Enhancing access to human rights (2004). Lansdown G ‘The evolving capacities of the child’ (2005) UNICEF Innocenti Research Centre, available at http://www.unicef-irc.org/publications/pdf/evolving-eng.pdf (accessed 15 November 2014). Lee Y ‘Reasons and timing for a communications procedure under the Convention on the Rights of the Child’ (2009) UN doc. A/HRC/WG.7/1/CRP.6. Newell P ‘Submission to Open-ended Working Group of the possibility of elaborating an option protocol to provide a communications procedure for the Convention on the Rights of the Child’ (2009) UN doc. A/HRC/WG.7/1/CRP.2. Pinheiro PS ‘Reasons and timing to elaborate a communications procedure under the Convention on the Rights of the Child’ (2009) UN doc. A/HRC/WG.7/1/CRP.4. Santos Pais M ‘Human Rights Council Working Group and an optional protocol to the Convention on the Rights of the Child to provide a communications procedure’ (2009) UN doc. A/HRC/WG.7/1/CRP.7. Special Representative of the Secretary-General on Violence against Children and the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography Joint report (2011) UN Doc. A/HCR/16/56.

chapter 9

The Role of the Professions in Effective Implementation of the crc Jane Williams Abstract The crc can only be fully effective if integrated in domestic legal systems and if ­operative at all levels of governance. Effective implementation also requires that the crc is accepted in practice as a code governing interactions between state and private institutions, children and their families. This means, amongst other things, that the crc should be internalised in professional culture so that professionals absorb the values and requirements of the Convention. This chapter explores how professional ethics, policies and practices need to adapt to accommodate children’s rights. Integration of children’s rights with professional practice poses challenges to traditional approaches and value systems. It is argued that while legal redress and professional training are essential, children’s rights also need to be reflected in regulatory systems, practice guidance, protocols and processes that surround the exercise of professional practice. It is suggested that a legislative device such as the ‘due regard’ duty in the Rights of Children and Young Persons (Wales) Measure 2011, establishing the crc as a pervasive reference in administrative and operational decision-making, is a potentially effective way of creating an imperative to address these challenges. However, solutions and adaptations also need to come from within the professions themselves.

1 Introduction Professionals hold a crucial key to the effective implementation of the un Convention on the Rights of the Child (crc). In practice children need specialist professional advice and support to assert their rights. Professionals are centrally involved in the delivery of services and resources to protect and provide for children as required by the Convention. Professional knowledge and judgment informs many of the policy decisions which create or impede the conditions in which rights are realised, and, as members of civil society, professionals are often engaged in local governance, for example, as trustees or on governing bodies of schools, health and social welfare bodies and charities. When a professional practitioner engages directly with children, the ability of © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_010

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that practitioner to listen to and respect the child can be critical to realisation of the child’s participative rights. For all these reasons, it is perhaps surprising that the literature on the crc does not pay more attention to the nature and scope of professional engagement in implementation or to the conflicts and challenges such engagement can expose. This chapter explores these issues and suggests that they merit further examination at all levels. At the international level, the un Committee on the Rights of the Child could hold a Day of Discussion and produce a General Comment on State Party obligations regarding the impact of the professions. At the regional and national levels, governments should examine whether their laws are adequate to ensure that professionals are required to adhere to standards conducive to respecting, protecting and fulfilling children’s rights. At local levels, where professional services are delivered, individual practitioners and persons who employ or commission them need to examine their own practices, protocols and behaviour in light of the requirements of the Convention. 2

General Measures of Implementation

The role of the professions is rightly seen in the context of the general measures of implementation as well as sectoral measures. The general measures of implementation are derived from article 4, which states that ‘States Parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights set out in the Convention’. In its General Comment No. 5, the Committee on the Rights of the Child outlined the essential elements of what it described as the complex concept generated by article 4: that of ‘general measures of implementation’.1 The Committee had started to explore this notion in its earlier General Comment No. 2 on the role of national independent human rights institutions on the promotion and protection of the rights of the child.2 General Comment No. 5 states that all the rights in the Convention should be justiciable: that is, it should be possible for a child or children or groups of children, parents or other interested parties, to take an alleged violation to court and get a judicial remedy. Obviously, there is a need for professional legal advice, representation and professional opinion in the context of legal 1 un Committee on the Rights of the Child, General Comment No. 5 on general measures of implementation (2003) Geneva CRC/GC/2003/5. 2 un Committee on the Rights of the Child, General Comment No. 2 on the role of national independent human rights institutions (2002) Geneva CRC/GC/2002/2.

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proceedings. But this is only one arena: whilst it is true, as Professor Michael Freeman has said, that ‘rights without remedies are of merely symbolic value’,3 effective enforcement of rights is not just a question of being able to take a case to court. Cases that come before the courts will only ever represent a tiny proportion of the myriad decisions made in exercise of governmental authority which may impact adversely on a child’s or children’s rights. In fact, effective implementation depends heavily on the actions of professionals as gatekeepers to children’s access to their rights. The professionals concerned are the doctors, teachers, lawyers, social workers, health and welfare professionals who deliver services which are essential to individual children’s access to their rights, and also the civil servants, advisors to legislative bodies and administrators working at all levels of government to allocate resources, develop policy and make laws which create the conditions in which rights are fulfilled to a greater or lesser extent. The multifaceted nature of the general measures of implementation is explained in General Comment No. 5. The General Comment acknowledges the role of professionals without giving much detail as to what this implies in terms of adaptation by the professions. Paragraphs 9 to 12 set out the need for government coordination, allocation of political responsibility at appropriate levels and the creation of institutions both within and independent of government. The Committee recommends that central government and such agencies make use of impact assessments, budgetary analysis tools, data collection, evaluative techniques and reporting. Paragraphs 28 to 36 promote national plans of action that feed into sectoral plans in fields such as education and health. Each and all of these actions depend on input of professional expertise, but it is not until paragraph 53 that the professions are expressly mentioned. Under the heading of ‘training and capacity building’, the text refers to government officials, parliamentarians and the judiciary, and then to a list of examples of persons working ‘with and for’ children. The list includes ‘community and religious leaders, teachers, social workers and other professionals’. The purpose of training is stated to be to emphasize the status of the child as a holder of human rights, to increase knowledge and understanding of the Convention and to encourage active respect for all its provisions. The Committee expects to see the Convention reflected in professional training curricula, codes of conduct and educational curricula at all levels.4 3 Freeman M ‘The human rights of children’ (2010) 63 Current Legal Problems 1–44. 4 Para. 53.

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The professions are mentioned again at paragraph 56, under the heading ‘­Co-operation with civil society’: The Committee recognizes that responsibilities to respect and ensure the rights of children extend in practice beyond the State and State-­ controlled services and institutions to include children, parents and wider families, other adults, and non-State services and organizations. The Committee concurs, for example, with General Comment No. 14 (2000) of the Committee on Economic, Social and Cultural Rights on the right to the highest attainable standard of health, paragraph 42 of which states: ‘While only States are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society – individuals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil society organizations, as well as the private business sector – have responsibilities regarding the realization of the right to health. States parties should therefore provide an environment which facilitates the discharge of these responsibilities.’ General Comment No. 2, setting out the role and core activities of national ­independent human rights institutions, says that professional associations (such as doctors, lawyers, journalists and scientists) should be amongst those from which ‘pluralistic representation’ of such institutions is ensured (para. 12). The recommended activities of national independent human rights institutions include formulation of programmes and research for integration into professional training (para. 19). Clearly, the Committee envisions a wide collaborative effort engaging ­public and private actors. Here is General Comment No. 5 again, at paragraph 58: The State needs to work closely with non-governmental organizations in the widest sense, while respecting their autonomy; these include, for example, human rights ngos, child- and youth-led organizations and youth groups, parent and family groups, faith groups, academic institutions and professional associations. This exhortation to all of civil society to engage in the effort to implement the Convention is reminiscent of the poetic simplicity of Eglantyne Jebb’s muchquoted statement when promoting the first Declaration on the Rights of the Child in 1923:

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I believe we should claim certain rights for the children and labour for their universal recognition, so that everybody – not merely the small number of people who are in a position to contribute to relief funds, but everybody who in any way comes into contact with children, that is to say the vast majority of mankind – may be in a position to help forward the movement.5 Jebb was writing in England before the emergence of the modern welfare state, before socialised health care was established in countries where it now exists or has existed, before the development of a concept of children’s and social care workforces, before the period of expansion in statutory social work, and before the modern era of commissioning, competitive tendering, regulation and inspection. Yet her inspiration that somehow ‘all of mankind’ has a part to play finds expression in General Comments Nos. 5 and 2 of the Committee on the Rights of the Child. The extracts quoted above acknowledge that, as a subset of ‘all of mankind’, professionals have their particular part to play. General Comment No. 5 and No. 2 exemplify the main ways in which professionals are mentioned in the literature of the Convention: first, as persons who need to be trained to respect the rights of the child; secondly, as experts whose specialist knowledge is necessary to address children’s needs; and, thirdly, as members of civil society with whom States Parties must cooperate. The State Party obligation is thus, at a minimum, to take steps to ensure that: • both initial and continuous professional training includes children’s rights; • adequate professional services are available to ensure practical implementation of children’s rights; and • professional associations are included amongst those with whom governments engage in deliberative processes aimed at achieving implementation. 3

Specific Aspects of Implementation

The same themes permeate many of the other General Comments of the Committee insofar as they refer to the role of professionals. General Comment No. 1

5 Letter from Jebb to Suzanne Ferriere, dated 25 January 1923, quoted in Longford M ‘ngos and the rights of the child’ in Willetts P (ed) The Conscience of the World: the Role of NonGovernmental Organisations in the u.n. System (1996) 215.

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on the aims of education6 states in paragraph 18 that pre-service and in-service training for teachers and administrators in schools is essential and that teaching methods used in schools should reflect the spirit and educational philosophy of the Convention and the aims of education set out in Article 29(1). Paragraph 22 states that teachers, amongst others, including pupils, should take part in evaluative surveys to assess progress on implementation of Article 29. General Comment No. 4 on adolescent health and development7 states that practitioners and professional associations should be involved in a multisectoral approach to promotion and protection of adolescent health (para. 42). In General Comment No. 6 on the treatment of unaccompanied and separated children outside their country of origin,8 there are several references to the need for ‘qualified professional’ judgement, legal representation and the need for training of personnel, including professionals (paras. 20, 31, 95 and 97). In General Comment No. 7 on implementing rights in early childhood,9 training is again mentioned, at a fairly high level of generality, grouping professionals together with no specificity as to the roles they play or what the child rights training should focus upon. Once again, the phrase ‘professionals working for and with children’ appears as a descriptor of many different types of professional: States parties are encouraged to undertake systematic child rights training for children and their parents, as well as for all professionals working for and with children, in particular parliamentarians, judges, magistrates, lawyers, law enforcement officials, civil servants, personnel in institutions and places of detention for children, teachers, health personnel, social workers and local leaders.10 In General Comment No. 7, as in General Comment No. 4, there is also emphasis on the importance of professionals with specialised skills and training, including proper understanding of children’s rights, to meet the needs of children in particular age ranges (paras. 23, 32). In General Comment No. 9 on the rights of children with disabilities,11 General Comment No. 8 on the right of the child to protection from corporal 6 CRC/GC/2003/5. 7 CRC/GC/2003/4. 8 CRC/GC/2005/6. 9 CRC/C/GC/7.Rev.1. 10 Para. 41. 11 CRC/C/GC/9.

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punishment and other cruel or degrading forms of punishment,12 General Comment No. 10 on children’s rights in juvenile justice,13 General Comment No. 11 on indigenous children and their rights under the Convention,14 and so on, we find similar emphases on training in children’s rights and specialised training focused on particular needs. All these references to the role of professionals are at a fairly general level. For example, references to professionals working ‘with and for’ children include those who clearly do so as part of their individual case load and others with a more tangential connection with children in the course of their work, although in practice it is reasonable to assume that the level of training and also the prominence of the requirements of the crc in daily work would vary between, for example, a social worker and a parliamentarian or religious leader. The ‘specific aspects’ General Comments discussed in this section each focus on crc implementation for particular groups of children or in relation to particular problems and circumstances. None focuses on a particular sector that plays a key role in delivering the many changes that are recommended to give effect to the Convention. 4

General Comment No. 16: The Business Sector

General Comment No. 16, however, represents a new departure. It concerns state obligations regarding the impact of a particular sector – the business sector – on children’s rights. As such, it is pertinent to the role of professionals because certain professional services constitute a significant part of the business sector and economy in many developed countries. This General Comment deals in more detail with what needs to happen within the business sector in order for the necessary changes to be implemented, and with how States Parties can use governmental authority to stimulate such changes and monitor their impact. This approach could usefully be replicated in a General Comment dealing with state obligations regarding the role of the professions and professional services, whether in the public, business or not-for-profit sectors. In General Comment No. 16, the Committee recommends that there should be a permanent monitoring mechanism or process aimed at ensuring that all non-state service providers have in place and apply policies, programmes and 12 CRC/C/GC/8. 13 CRC/C/GC/10. 14 CRC/C/GC/11.

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procedures which are in compliance with the Convention.15 Several passages could be applied almost verbatim to the professions and professional services (if one substitutes these terms for terms like ‘business’, ‘business enterprises’, ‘business sectors’, ‘business activities’ in the text) and would be a good startingpoint for discussion. For example, paragraph 26 reads: States have the obligation to ensure that all actors respect children’s rights, including in the context of business activities and operations. To achieve this, all business-related policy, legislation or administrative acts and decision-making should be transparent, informed and include full and continuous consideration of the impact on the rights of the child; Similarly, paragraph 28 observes: A State is […] responsible for infringements of children’s rights caused or contributed to by business enterprises where it has failed to undertake necessary, appropriate and reasonable measures to prevent and remedy such infringements or otherwise collaborated with or tolerated the infringements; Paragraph 29 reads: States must implement legislative, administrative, budgetary, judicial, promotional and other measures in conformity with article 4 relating to business activities that impact on children’s rights. […] States should provide stable and predictable legal and regulatory environments which enable business enterprises to respect children’s rights. This includes clear and well-enforced law and standards; So, too, with paragraph 53: Legislation and regulation are essential instruments for ensuring that the activities and operations of business enterprises do not adversely impact on or violate the rights of the child. States should enact legislation that gives effect to the rights of the child by third parties and provides a clear and predictable legal and regulatory environment which enables business enterprises to respect children’s rights. To meet their obligation to adopt appropriate and reasonable legislative and regulatory measures 15

Para. 34.

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to ensure that business enterprises do not infringe on children’s rights, States will need to gather data, evidence and research for identifying specific business sectors of concern. At paragraph 61, on ‘Enforcement measures’, General Comment No. 16 refers to the role of the professions as part of the implementation of the General Comment itself, in similar fashion to the references to their role in the ‘specific aspects’ General Comments: as part of the machinery for ensuring that the Convention and other international human rights standards, as well as national legislation, are correctly applied, for the fulfilment of which training of judges, administrative officials, lawyers and legal aid providers is necessary (para. 61(c)). A General Comment dedicated to state obligations regarding professional services might address similar issues about regulation and supervision of, and accountability for, professional services to ensure respect for, and protection and fulfilment of, the rights of the child. 5

State Obligations Regarding Impact of Professional Services on the Rights of the Child

Although some of the content of General Comment No. 16 is, on the face of it, transferable as a basis for thinking about state obligations regarding the impact of professional services, there are also many issues peculiar to the professions that would need to be addressed. A central consideration is the question of the relationship between State Party obligations and professional identities, which include fulfilment of professional obligations. By definition, a profession is an economic activity involving the application of specialist knowledge, coupled with fidelity to ethics and practice standards generated by the profession’s own organising bodies. Professions develop their own perception of the responsibilities of practitioners, their own value systems and their own view of accountability. With this in mind, it is necessary to consider what action the state can take to provide an environment for professional practice that facilitates discharge of the requirements of the Convention, without undermining the essence of the profession. How can the State Party ensure the necessary training and capacity-building whilst still respecting the autonomy of professional bodies, or the intellectual freedom of the academic and professional institutions which deliver professional education and training? What ‘legislative, administrative and other measures’, in the words of article 4, can the State Party take to direct or guide the professions to integrate the Convention in their perception of their own

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professional identity, in the exercise of professional judgment, or to engage in civil society groups aimed at implementation? And what kind of domestic law can help ensure the necessary action is taken by the State Party in all its manifestations, at all internal levels of governance? There is a saying: you can lead a horse to water but you can’t make it drink. We can offer great training on children’s rights, but how can we ensure it makes an impact on the way in which children are treated in practice by professionals? This is important in terms of public perceptions as well as substantive fulfilment of the requirements of the crc. Teachers, education welfare officers, doctors, lawyers, social workers and similar professionals are often, to children, young people and their families, effectively the face of state authority. The distinction between the obligations of the State Party and the exercise by these professionals of the authority conferred on them by laws passed by the state is not necessarily obvious to those affected by professional judgment. What professionals do may often be understood by children and their families as what the government would want them to do: it is thus experienced, consciously or otherwise, as a measure of State Party compliance. 6

Interrogating the Role of the Professions: Research, Monitoring and Reporting

So what do we know about the way in which the crc impacts on professional practice? After 25 years, several reporting rounds, some 20 or so General Comments, incremental absorption of the crc into the domestic laws of the many States Parties, what evidence is there of change? These questions can and should of course be addressed in the course of monitoring and reporting to the un Committee on the Rights of the Child. The process is dynamic and capable of generating change locally and nationally as well as through the treatymonitoring system.16 In Wales, as in the other parts of the United Kingdom (uk), a non-governmental alliance is dedicated to evidence-gathering, reporting and policy advocacy. The Welsh group is the Wales uncrc Monitoring Group, formed in 2002 following the uk State Party’s second report to the Committee.17 In 2010 the Monitoring Group set up a sub-committee on article 42, and during 2011/12, 16 17

Woll L ‘Reporting to the un Committee on the Rights of the Child: A catalyst for domestic policy change’ (2000) 8 International Journal of Children’s Rights 71–81. Croke R & Williams J ‘Institutional support for the uncrc’s “citizen child”’ in Invernizzi A & Williams J (eds) Children and Citizenship (2008) 182–92.

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held a series of evidence sessions seeking to gauge professional knowledge and training on, and also attitudes to, child rights-based approaches in connection with their work.18 The work was in part in response to a commission by Welsh Government with a view to informing government strategies on training and raising awareness on the crc. While the indications are that little progress has been achieved in that regard,19 the study is nonetheless a helpful indicator of some of the issues. For example, on pre-qualifying and post-qualifying training: • Amongst professionals who work directly with children in educational, health and social care settings, there was a common perception that they already took a ‘child-centred’ approach and this was sometimes equated with a child rights-based approach. However, ‘child-centred’ practices were not rooted in substantive appreciation of the crc (in fact, most practitioners had very little understanding of it, as opposed to awareness that it exists). Often the ‘child-centred’ approach they described reflected a traditional, paternalistic, welfare-oriented conceptualisation of the relationship between the professional and the child. • There was very little information about the crc in initial training for any of the professional groups studied. Where included, it was most likely to be in a stand-alone lecture or session, and there was no evidence of integration of the crc across the curriculum. • Child rights modules existed in initial and post-qualification training, but normally as optional study. • There was significant variation between academic and training institutions: the amount of exposure to child rights depended on where professionals happen to have undertaken their studies and the particular interests of the programme directors and module leaders. In relation to practice, the study revealed that in some areas, for example social work, professionals frequently encountered what they recognised as rights conflicts (court proceedings in family matters were a frequent example). They recognised that too often there was inadequate consideration of the child’s standpoint and voice. However, most did not understand how 18

19

The model established by this work has now been taken up in the Wales uncrc Monitoring Group’s work across all areas of investigation in order to inform its work, including its reports to the un Committee. Croke R (ed) Rights Here Right Now: Are Children’s Rights a Reality in Wales? Wales ngo Interim Report (2013) 16–18.

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the crc could help to resolve this. Likewise, health care professionals, whilst encountering and wishing to overcome numerous problems in accessing the right support to meet children’s needs, tended not to see how the crc might offer solutions.20 The Wales Article 42 hearings discussed above did not include investigation of legal professional training. However, in common with education for health and social care professionals, legal education in England and Wales does not include children’s rights as a compulsory topic either at the academic or vocational stage of initial training. Certain ‘core’ subjects must be studied, one of which is constitutional law, which will always include the Human Rights Act 1998 (the uk’s legislation incorporating the European Convention on Human Rights). But education on the crc or children’s rights as such is optional and its availability varies amongst law schools. Nor is there any attempt as yet to integrate children’s rights systematically in curricula for other legal subjects. Having said that, some legal practitioners have developed a specialism in children’s rights, and increasing use of crc-based arguments in litigation in ­England and Wales is a testament to their efforts.21 In medical education, there has been some pioneering work aimed at integrating children’s rights. A local exemplar in Wales is Professor Elspeth Webb, a member of the Wales uncrc Monitoring Group. She has promoted the inclusion of basic, intermediate and reflective study of human rights in the curriculum at Cardiff Medical School. There are other examples in Wales, England and no doubt elsewhere, but, in common with legal education, there is no professional requirement for such developments. Webb’s innovations owe inspiration in part to the work of Professor Jeff Goldhagen, Gerison Lansdown and Dr Tony Waterson, whose curriculum for child rights and health22 was taken up by the International Institute for Child Rights and Development and developed in its Child Rights Education for Professionals programme.23 Thus in medicine and health care, there is a basis for systematic incorporation of child rights content within curricula offered by education providers. 20

Reports of the evidence sessions are accessible at http://www.childrensrightswales.org .uk. 21 Williams J ‘England and Wales’ in Liefaard T & Doek J Litigating the Rights of the Child (2014) 53–70. 22 The curriculum was originally developed for the American Academy of Paediatrics and the Royal College of Paediatrics and Child Health. 23 The current curriculum is available at http://www.rightsofthechild.org/pdf/Revised CurriculumHealthCareProfessionalsJuly2008Canada.pdf (accessed 11 January 2016).

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Comparative research, which the Committee might encourage, whether through the un or regional agencies or otherwise, would enable a broader ­picture to emerge of the reception of the crc in professional practice and professional education in diverse countries. Occasional or optional training is an inadequate response, and good practice examples should be sought where the values and requirements of the crc are woven into the delivery of professional education and clinical practice. The aim of these changes is summed up in the response of a child health practitioner interviewed in research for the Wales Article 42 hearings described above: People know to wear a seatbelt. People occasionally put a seatbelt on because a policeman will be watching, but for the most it’s natural, and they’d feel unsafe if they didn’t. That’s where this needs to be. Constant. And then we would have succeeded.24 This remark underlines the fact that even knowing the crc and referring to it in practice are only part of the journey. There is also the further step of normalising it within professional responses, a process which may involve challenging traditions of thought and behaviour rooted in values that lie at the heart of professional identity, the issue with which the next section is concerned. 7

Children’s Rights, Professional Ethics and the Resilience of Established Wisdom

A common defining feature of professions is adherence to a professional code of ethics normally agreed by some kind of organising or governing body. The point of a code of ethics is to articulate the values that will inform professional judgment and form a framework for discipline. The professions each have their own ethos, rules, socialisation, self-image, internal ideological conflicts, and linguistic and conceptual artefacts. Integrating the crc is more complex than it looks, if we hope to see practical impact. We have to recognise that professional ethics for some professions, for example doctors and lawyers, have developed over many centuries without reference to children’s rights, or human rights, and that in day-to-day practice children’s rights are simply not a dominant consideration. Even in social work, a much younger profession than law or medicine, and one which defines itself 24

Hudson C & Webb E ‘Article 42: Awareness of the uncrc amongst child health practitioners in Wales’ (2011) Presentation on research carried out for Save the Children, Wales.

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in part by reference to achievement of ‘human rights and social justice’,25 the language of rights is often absent in practice that is carried out almost entirely in state-constructed welfare systems that make little or no reference to rights and in conditions of severe pressure on human and other resources. It has been argued that in such circumstances it becomes impossible for social work to achieve its ‘emancipatory’ objectives.26 Furthermore, the meanings practitioners attach to human rights, like the meanings they attach to equality and fairness, are diverse and may result in very different approaches to individual case work.27 Professional codes of ethics and codes of practice reflect the profession’s own view of how its members should behave in relation to the individual client, the discipline itself, and the societies in which they practise. The pre-history and history of the crc flow from different streams,28 but the imperatives of the Convention now have to be absorbed somehow by these professions and carried through into choices and judgments they make in relation to real cases and real children. Traditional habits of thought, or the established wisdom, are hard to change, even when professionals begin to acknowledge the requirements of the crc and allow it into their discourse. This is perhaps most commonly illustrated in relation to professional practice engaging both the child’s independent right to be heard and the child’s best interests. A recent example debated in the course of evidence sessions in Wales ngo monitoring is the legal case of Re P-S (Children) [2013] ewca Civ 223. This concerned an application by a 15-year-old boy living in west Wales for leave to attend court to give evidence in care proceedings to which he was a party. 25

26 27 28

As most recently affirmed by the International Federation of Social Workers in General Assembly, 2014: ‘Social work is a practice-based profession and an academic discipline that promotes social change and development, social cohesion, and the empowerment and liberation of people. Principles of social justice, human rights, collective responsibility and respect for diversities are central to social work. Underpinned by theories of social work, social sciences, humanities and indigenous knowledge, social work engages people and structures to address life challenges and enhance wellbeing. The above definition may be amplified at national and/or regional levels.’ Available at http://ifsw.org/policies/ definition-of-social-work/. Jordan B ‘Emancipatory social work: opportunity or oxymoron’ (2004) 34(1) British Journal of Social Work 5–19. For example, O’Brien M ‘Equality and fairness: Linking social justice and social work practice’ (2011) 11(2) Journal of Social Work 143–58. Milne B ‘From chattels to citizens? Eighty years of Eglantyne Jebb’s legacy to children and beyond’ in Invernizzi A & Williams J Children and Citizenship (2008) 44–54.

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Under the legislation on care proceedings in England and Wales, the child in respect of whom a care order is sought is automatically a party to the proceedings.29 The normal practice is for the court to appoint an ‘officer of the service’ (England) or a ‘Welsh family proceedings officer (Wales)’ (essentially a guardian ad litem30) to do two things: first, to elicit and communicate to the court the wishes and feelings of the child, and secondly, to prepare an expert assessment of what would best serve the welfare interest of the child.31 The court normally also appoints a lawyer to represent the child, but if a child of sufficient age and understanding wishes, the child can instruct a lawyer and be separately represented in the proceedings. The general rule is that any party must attend court, and the court has power specifically to order the attendance of the child.32 However, the proceedings may be conducted in the absence of the child if the court considers it in the interests of the child with regard to the matters to be discussed or the evidence likely to be given and the child is represented by a guardian or solicitor.33 This is, in practice, the default position in England and Wales: legal precedents have developed what is effectively a presumption that it is contrary to the child’s interests to be present in court whilst the case is conducted.34 A child’s evidence may be heard by the court if, in the court’s opinion, the child understands the duty to speak the truth and has sufficient understanding to justify hearing the evidence. The established wisdom from legal precedent is that these arrangements are compliant with article 12 of the crc.35 In M’s case, the local authority sought a care order which would secure his continued placement in foster care. M vehemently opposed the care order and 29 30

31 32 33 34 35

Family Proceedings Rule 12.3 (1) s.i. 2010/2955 (L.17). Usually a senior, experienced, professionally qualified social worker. The agency that employs them is referred to as ‘cafcass’ (Child and Family Court Advisory and Support Service). In Wales this service is a function conferred on Welsh Ministers, which means that the ‘due regard’ duty under the Rights of Children and Young Persons (Wales) Measure 2011 would now applies to the work carried out by the officers. At the time of Re P-S, however, the duty was not yet in force. Section 41 Children Act 1989: the court may decide not to appoint a guardian if satisfied that it is not necessary to do so in order to safeguard the child’s interest. Section 95 Children Act 1989 and Rule 12.14 Family Proceedings Rules. Family Proceedings rules Rule 12.14 (3). Jones G & Williams J ‘Due process and the paramountcy of welfare’ (2004) Wales Journal of Law and Policy. Mabon v Mabon [2005] ewca Civ 634 per Thorpe LJ, cited in the Court of Appeal’s judgment in Re P-S. Also, discussion in Chapters 7 and 8 Fortin J Children’s Rights and the Developing Law 3 ed (2009).

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wished to return to live with his mother, who, the local authority argued, was unfit to care for him. M wanted to be present and give evidence in the court hearing. The trial judge refused M’s application and although she did meet him in private, this was solely for the purpose of explaining the process to him, and not to hear his views on any of the evidence in the case or his preferences as to the outcome. M then sought to be allowed to give evidence by video link, ‘so that the strength of my feelings can be made clear to everyone’. This application was also rejected. M appealed against both the care order and the judge’s rulings on his applications to give evidence. The Court of Appeal of England and Wales dismissed his appeal on both counts. Child rights activists will find this result surprising. However, the Court of Appeal heard argument about the crc and referred to it in its judgment, quoting article 12 of the crc in full and also the following extracts from General Comment No. 12 on the right of the child to be heard: 34. A child cannot be heard effectively where the environment is intimidating, hostile, insensitive or inappropriate for her or his age. […] 35. After the child has decided to be heard, he or she will have to decide how to be heard: ‘either directly, or through a representative or an appropriate body.’ The Committee recommends that, wherever possible, the child must be given the opportunity to be directly heard in any proceedings. […] 38. The opportunity for representation must be ‘in a manner consistent with the procedural rules of national law’. This clause should not be interpreted as permitting the use of procedural legislation which restricts or prevents enjoyment of this fundamental right. On the contrary, States parties are encouraged to comply with the basic rules of fair proceedings, such as the right to a defence and the right to access one’s own files. […] 42. The context in which a child exercises her or his right to be heard has to be enabling and encouraging, so that the child can be sure that the adult who is responsible for the hearing is willing to listen and seriously consider what the child has decided to communicate. The person who will hear the views of the child can be […] a decision maker in an institution (e.g. a director, administrator or judge) […] 43. Experience indicates that the situation should have the format of a talk rather than a one-sided examination. Preferably, a child should not be heard in open court, but under conditions of confidentiality. […] 45. Since the child enjoys the right that her or his views are given due weight, the decision maker has to inform the child of the outcome of the

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process and explain how her or his views were considered. The feedback is a guarantee that the views of the child are not only heard as a formality, but are taken seriously. The Court of Appeal in Re P-S followed a number of legal precedents in the uk by stating that the requirements of the crc form part of the rationale for recognition that a child has the right to be heard in family proceedings in England and Wales, and that a child does indeed have that right. This right to be heard has thus become part of the established wisdom of the law as practised by the legal profession in England and Wales. But in Re P-S the Court of Appeal declined to go further and say that a child who was a party to proceedings had a right to give evidence. The reasons given were that the crc itself contemplates that a child’s participation may be either direct, or by representation or via a welfare intermediary such as a court welfare reporter. The law in England and Wales required a balance to be struck between the benefit to be gained from hearing a child’s testimony and the harm to the child that may be caused by giving evidence. In Re P-S, the trial judge had said that she already knew M’s wishes and feelings because they were included in the welfare reports and could be further communicated by his legal representative in court. The court, therefore, would not be assisted by hearing his evidence: put differently, it could not affect the outcome. That being the case, and in view of the potential for an emotional scene to unfold due to M’s mother’s presence in the courtroom, M’s own strong wish to be involved was overruled – in his own best interests. The case turns on the exercise of judicial discretion. Not every judge would have reached the same conclusion: some may well have given more weight to the benefit to M in knowing that he had participated fully and had been respected as an active agent in the proceedings and not excluded from the discussion that would decide his immediate future. But on appeal, the appellate court cannot overturn the exercise of discretion by a trial judge, who had the benefit of hearing the case at first hand, unless it is shown to have been plainly wrong or based on misunderstanding of the law. When the case of P-S was discussed in the informality of the Wales crc monitoring sessions,36 it was clear that for those who approached the case from a child rights perspective, M’s rights under articles 3 and 12 of the crc were simply not respected in this decision, neither in the reasoning of the trial judge nor that of the Court of Appeal. For legal practitioners who understood the established wisdom, the result could be understood as supportive rather 36

Attended by the author, Cardiff, 2013.

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than contrary to the rights of the child, and the fact that M’s evidence would not have further assisted the court had an importance that the child rights activists found surprising. The discussion illustrated the complexities involved in assimilation of the crc in professional decision-making. If, as this author believes, the child rights activists are right about the proper interpretation of the requirements of the crc in relation to this particular case, the Court of Appeal’s judgment shows that the established legal wisdom has absorbed the language of rights without yet attaching the ‘right’ meaning to it. It is a gradual process of assimilation, like the seatbelts metaphor referred to above, but with the complicating addition of the need to negotiate the meaning and practical import of the Convention’s requirements. 8

Opportunities for State Regulation

Almost all professional practice is regulated in some way. Where new professions emerge, practitioners may see legal regulation as an important aspect of recognition and governments’ need to decide whether and how they should be regulated. Both the ‘whether’ and the ‘how’ questions can engage weighty issues: fundamental values may come into play such as freedom of expression (in relation to the profession of journalism) and the separation of powers (in relation to the legal profession, as an adjunct of judicial independence). Nonetheless, one way in which the State Party can help in the process of assimilation of children’s rights in professional decision-making is by using regulatory and commissioning powers in relation to the professions and professional services. There are several points at which opportunities for regulation arise. The first opportunity is in devising the specialised training and formal qualification which characterise a profession. The second is in articulating professional standards, a function that may be entrusted to a body created by the profession itself or by government. The third opportunity is at the point of delivery of professional services, in the private transactions or public commissioning through which professional practitioners earn their living. Fourthly, there are the processes for redress where professional practice causes harm or is perceived as sub-standard. At each of these points, policy choices involve weighing a number of factors to reach a balance between professional autonomy and government regulation, and a number of policy advocacy communities are likely to be engaged, child rights advocates being only one such community, with others, such as professional associations, being much longer established and enjoying greater

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political influence. At the point of prescription of training and formal qualifications, the question of academic freedom of higher educational institutions may bring that community into the mix. The policy goals generated by the requirements of the crc will have to be weighed against other policy goals and requirements. There are also policy choices to be made about which professions it is appropriate to regulate with a view to crc implementation, and to what extent. It was noted above that in the General Comments it is suggested that training should be given to a very wide range of professionals, including parliamentarians and religious and community leaders, groups who have quite different types of engagement with children compared to teachers or doctors, for example. Choices need to be made about when it is appropriate to specify child rights training as part of legal regulation and when informal or persuasive steps will suffice, and about what further legal imperatives are appropriate to seek to ensure practice that complies with the crc. No attempt is made here to suggest what weight should be attached to these factors or what policy choices are more or less compliant with the requirements of the crc. The last section of the chapter addresses the question of how to ensure that governments give adequate attention to the requirements of the crc when making decisions, including legislative proposals, impacting on professions and professional practice. Again, the example of Wales is used, where the legislative device of a pervasive ‘due regard’ duty is in force, and should, if effective, compel attention to the requirements of the crc and to the need for deliberative processes in which these balances and choices will be made. 9

Integrating the crc in Approaches to Regulation: The Beauty of ‘due regard’37

In Wales, since May 2014 Welsh Ministers, whenever they exercise any of their functions, have been obliged by law to have ‘due regard’ to the requirements of the crc and the Optional Protocols that have been ratified by the uk.38 This law was driven by a combination of the political will of key political actors and persuasive advocacy from the non-governmental sector, and the law was passed in spite of resistance from senior civil servants. The background 37 38

See further Hoffman H & Williams J ‘The beauty of due regard: Incorporating the crc in devolved governance’ (2013) 1(1) International Family Law, Policy and Practice 48–53. S. 1 Rights of Children and Young Persons (Wales) Measure 2011.

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and backroom story of the legislative passage, as well as the potential implications, of the Rights of Children and Young Persons (Wales) Measure 2011 is told elsewhere.39 In thinking about the role of professionals in implementation of the crc, and about State Party obligations with regard to the impact of the professional services sector, both the legislative model and the reluctance of the bureaucracy to embrace it are relevant. The ‘due regard’ duty applies to the exercise by Welsh Government of functions that regulate the professions. The Welsh Government has such functions in relation to several professional groups which are crucial to effective implementation, including teachers, medical practitioners, health and social care professionals and social workers. In the case of P-S discussed above, the Court of Appeal acknowledged, without however developing the point, that the Measure changes not only what Welsh Ministers must do, but also the way in which a court in Wales must think about matters relating to the Convention: The u.n. Convention on the Rights of the Child has not been made a part of English law but the duty of the court is nonetheless to have regard to it when considering matters relating to it. The position may now be different in Wales because the United Nations Convention on the Rights of the Child has become part of Welsh legislation by reason of the Rights of Children and Young Persons (Wales) Measure 2011 […] The Measure will shape all future policy decisions taken by Welsh Ministers.40 The duty is non-delegable but as in the case of all other Ministerial functions, exercise of the duty in practice is supported by civil servants. Case law under equalities legislation in the uk has delivered judicial interpretation of what ‘due regard’ means in relation to a different due regard duty relating to specified broad equality objectives.41 From this case law42 the following requirements can be seen: 39 40 41 42

Williams J (ed) The United Nations Convention on the Rights of the Child in Wales (2013) 49–64. At para. 35 of the judgment of Sir Alan Ward. S. 149 Equality Act 2010. R (Brown) v Secretary of State for Work and Pensions [2008] ewhc 3158 (Admin); R(Kaur and Shah) v London Borough of Ealing [2008] ewhc 2062 (Admin); R (W and others) v Birmingham City Council[2011] ewhc 1147 (Admin); R (Boyejo and others) v Barnet London Borough Council; R (Smith) v Portsmouth City Council [2009] ewhc 3261 (Admin); R (Harris) v London Borough of Haringey and others [2010] ewca 703 (Civ); R (ms) v Oldham Metropolitan Council [2010] ewhc(Admin) 802.

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• The decision-maker must be made aware of the duty and its goals, and an incomplete or erroneous appreciation of them will not satisfy the duty: a ‘general awareness’ is inadequate. • The duty must be fulfilled before and at the time the decision is made: retrospective justification is not enough. • The duty requires a conscious approach and state of mind: it must be exercised in substance, with rigour and with an open mind. • Compliance with the duty must be integrated within the discharge of the functions of the decision-maker, but must not be merely a question of ‘ticking boxes’ or formulaic machinery. • Failure to mention the duty specifically is not necessarily fatal to compliance, but it is good practice to do so and to ensure proper records are kept of what was considered and the reasons for the decision: without such a record, it will be more difficult for the decision-maker to prove compliance. In some cases, it may be obvious that evidence is needed. • The duty is non-delegable and continuous: periodic review is required. • Where the decision involves commissioning others to carry out functions, the decision-maker must maintain adequate supervision to ensure the duty is fulfilled. • Where consultation is carried out, it must be adequate, providing sufficient information for respondents to be able to interrogate the reasons for the proposed decision and make representations about them. Although there is as yet no reported judicial decision on the ‘due regard’ duty in Section 1 of the Rights of Children and Young Persons (Wales) Measure 2011, it is reasonable to assume that a similar approach would be taken to the nature of that duty. Accordingly, the effect of the Measure is that Welsh Government civil servants must acquire sufficient knowledge of the requirements of the Convention and the Optional Protocols to enable them to give such information and advice to Welsh Ministers as is necessary for Welsh Ministers to discharge their duty of due regard. Indeed, training on the crc for all Welsh Government civil servants has been part of the strategy for implementation of the 2011 Measure.43 The Welsh Government’s Children’s Rights Scheme,44 issued pursuant to Section 2 of the Measure, requires civil servants to consider whether a child 43 44

Welsh Government Children’s Rights Scheme 2014: Arrangements for having due regard to the uncrc when Welsh Ministers exercise any of their functions (2014). Welsh Government Children’s Rights Scheme 2014: Arrangements for having due regard to the uncrc when Welsh Ministers exercise any of their functions (2014).

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rights impact assessment is required in relation to the work they are doing. A six-step approach has been devised, together with flow charts for legislative and other types of work to which the duty applies, and these form part of the training for civil servants.45 All child rights impact assessments are accessible on request and some are routinely published on the Welsh Government’s website. The Scheme also includes arrangements for Welsh Ministers to report on their compliance with the duty to the National Assembly for Wales, a requirement about raising awareness of the crc amongst the public (Section 5 of the Measure imposes a specific, free-standing duty on Welsh Ministers to raise public awareness) and mechanisms of accountability, which include complaints, approach to the Children’s Commissioner for Wales or an elected representative, and the possibility of judicial review. This essentially administrative scheme is only beginning to settle in. It is too early to assess how effective it will be in embedding the crc in deliberative processes leading to decisions on regulation of the professions (or indeed any decisions within the competence of the Welsh Ministers). But its purpose or ‘beauty’ was, and remains, to bring out of the shadows the obligation to implement the crc and give it prominence. It has the effect that when Welsh Ministers exercise functions relating to professional regulation in Wales, they have an obligation to think about how to make the impact of professional services positive in terms of respect for, protection and implementation of children’s rights. Thus the child rights policy advocacy community has an opportunity to gain more influence than they might otherwise have had, to inform and be informed and to challenge if need be, and there is a framework within which the essential deliberative processes can take place, leading, hopefully, to shared understanding of the detailed application of crc requirements to specific contexts. 10 Conclusion The role of professionals is crucial to effective implementation of the crc. It is recognised in the literature of the Convention but there has not yet been enough attention to the issues that arise in absorbing the crc into professional ethos and professional practice. The Committee could usefully elucidate the State Party obligations with regard to the impact of the professions. This should include the use of governmental powers of regulation and oversight in ways 45

Welsh Government Children’s Rights Scheme 2014: Arrangements for having due regard to the uncrc when Welsh Ministers exercise any of their functions (2014) 9–10.

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that explicitly acknowledge the requirements of the crc, so that professionals know that respect for, protection and fulfilment of the rights of the child are measures of professional competence. Consideration should be given to laws that compel the use of governmental regulatory powers to promote the crc, and the Wales experiment with the duty of ‘due regard’ is worthy of examination and evaluation to that end. Bibliography Books

Fortin J Children’s Rights and the Developing Law 3 ed (2009) Cambridge University Press. Williams J (ed) The United Nations Convention on the Rights of the Child in Wales (2013) University of Wales Press.



Chapters in Books



Journal Articles

Croke R & Williams J ‘Institutional support for the UNCRC’s “citizen child”’ in I­ nvernizzi A & Williams J (eds) 182–92 Children and Citizenship (2008) SAGE. Longford M ‘NGOs and the rights of the child’ in Willetts P (ed) The Conscience of the  World: the Role of Non-Governmental Organisations in the U.N. System (1996) London: Hurst & Co. Milne B ‘From chattels to citizens? Eighty years of Eglantyne Jebb’s legacy to children and beyond’ in Invernizzi A & Williams J Children and Citizenship (2008) 44–54 SAGE. Williams J ‘England and Wales’ in Liefaard T & Doek J Litigating the Rights of the Child (2014) 53–70 Springer.

Freeman M ‘The human rights of children’ (2010) 63 Current Legal Problems 1–44. Hoffman H & Williams J ‘The beauty of due regard: Incorporating the CRC in devolved governance’ (2013) 1(1) International Family Law, Policy and Practice 48–53. Jones G & Williams J ‘Due process and the paramountcy of welfare’ (2004) Wales Journal of Law and Policy (2004). Jordan B ‘Emancipatory social work: Opportunity or oxymoron’ (2004) 34(1) British Journal of Social Work 5–19. O’Brien M ‘Equality and fairness: Linking social justice and social work practice’ (2011) 11(2) Journal of Social Work 143–58. Woll L ‘Reporting to the UN Committee on the Rights of the Child: A catalyst for domestic policy change’ (2000) 8 International Journal of Children’s Rights 71–81.

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Reports

Croke R (ed) Rights Here Right Now: Are Children’s Rights a Reality in Wales? Wales NGO Interim Report (2013) Cardiff: Save the Children.



General Comments

UN Committee on the Rights of the Child, General Comment No. 2 on the role of national independent human rights institutions (2002) Geneva: Office of the High Commissioner of Human Rights CRC/GC/2002/2. UN Committee on the Rights of the Child, General Comment No. 5 on general measures of implementation (2003) Geneva: Office of the High Commission on Human Rights CRC/GC/2003/5.

Miscellaneous

Hudson C & Webb E ‘Article 42: Awareness of the UNCRC amongst child health practitioners in Wales’ (2011) Presentation on research carried out for Save the Children, Wales, available at http://www.childrensrightswales.org.uk (accessed 29 February 2016). Welsh Government Children’s Rights Scheme 2014: Arrangements for having due regard to the UNCRC when Welsh Ministers exercise any of their functions (2014), available at http://www.assembly.wales/Laid%20Documents/GEN-LD9732%20-%20Children %27s%20Rights%20Scheme%202014-22042014-255569/gen-ld9732-e-English.pdf (accessed 11 January 2016).

chapter 10

Closing the Gap between Social and Formal Accountability: Exploring the Role of Independent Human Rights Institutions for Children Vanessa Sedletzki Abstract The ongoing discrepancy between the rights articulated in the crc and their realisation requires considering how accountability for children’s rights is exacted. The literature has extensively examined the articulation between the two main forms of accountability – formal and social – to ensure transparent and accountable institutions for citizens, but has paid limited attention to the specific challenges accountability presents in relation to children’s rights. Yet the accountability gap, which too often prevents initiatives on the ground from impacting policies, is exacerbated when it comes to children. Children frequently lack the legal capacity, visibility, and political power to draw attention to their situation, to be heard and to prompt change. This chapter argues that independent human rights institutions for children – national human rights institutions with an explicit child rights mandate or specialised child rights mechanisms such as children’s ombudspersons – constitute a major instrument for closing this gap and ensuring that children’s agency is recognised and encouraged. By combining the characteristics of formal and social accountability and taking a child rights approach, independent human rights institutions offer a unique space for dialogue between ­society and the state, and between children and adults.

1 Introduction One significant breakthrough that the un Convention on the Rights of the Child (crc) has brought to the political and institutional landscape for children in the past 25 years has been the establishment of independent human rights institutions for children.1 Various studies have documented their development, role and function. In the context of the post-2015 development agenda, discussions have highlighted the need to reinforce good governance, in particular 1 United Nations Children’s Fund, State of the World’s Children 2015: Reimagine the Future: ­Innovation for Every Child (2014).

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by strengthening people’s voices and developing accountability mechanisms.2 The newly adopted Sustainable Development Goals include a goal focusing on good governance and aiming to ‘provide access to justice for all and build effective, accountable and inclusive institutions at all levels’.3 A challenge for the continued relevance and visibility of children’s rights lies in the ability of child rights discourse to feed into and appropriate these advances. It has been emphasised that the implementation of the crc relies on effective governance systems at the national level, not solely for children but for all. Addressing the ongoing discrepancy between the rights articulated in crc provisions and their enjoyment in practice requires considering the mechanisms and institutions through which the Convention is enforced.4 Accountability is a critical element of good governance. It defines the relationship between power-holders and citizens. It seeks to ensure that those in a position of authority fulfil their duties and that if they do not, mechanisms exist to correct the situation.5 There are two main forms of accountability. Formal accountability mainly involves state institutions and generally consists in internal processes aimed at ensuring performance and respect of the system’s rules. It chiefly addresses the so-called ‘supply-side’ of public action. Social accountability, on the other hand, primarily emerges from and relies on civil society. It is citizen-led and demand-driven.6 While the literature has extensively examined the articulation of these two forms of accountability and the conditions in which accountability can be effected for citizens, limited attention has been paid to the specific challenges accountability presents in relation to children’s rights. The accountability gap, which too often prevents initiatives on the ground from influencing decisionmakers and impacting policies, is exacerbated when it comes to children. Children frequently lack the legal capacity, visibility, and political power to draw 2 See, for example, Open Working Group (owg) on the Sustainable Development Goals, 19 focus areas for sustainable development, March 2014, Focus area 19; High Level Panel on the Post-2015 Development Agenda, ‘A New Global Partnership: Eradicate Poverty and Transform Economies through Sustainable Development’ United Nations Publications (2013). 3 Transforming our world: The 2030 Agenda for Sustainable Development, un General Assembly Resolution, A/69/L.85, Goal 16. 4 Save the Children, oecd, unicef, Child Rights and Governance Roundtable, Report and Conclusions (2011). 5 Gibbons E, Social accountability initiatives to achieve results and equity for children, ‘Child Rights and Social Accountability in the post-2015 World’ Background paper, unicef Programme Division (2014). 6 ohchr and Centre for Economic and Social Rights Who Will Be Accountable? Human Rights and the Post-2015 Development Agenda (2013).

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attention to their situation, to be heard and to prompt change. Consequently, closing the gap between social and formal accountability is a crucial step in ensuring that children’s agency in claiming their rights is acknowledged, encouraged, and leads to actual change. This question is of fundamental importance because it underlies the sustainability of the crc as a recognised and respected legal instrument guiding policies and practices for and with children. This chapter argues that independent human rights institutions for children constitute a major instrument for closing the gap between social and formal accountability for children’s rights. These bodies are either broad-based national human rights institutions (nhris) with an explicit child rights mandate or specialised child rights mechanisms such as ombudspersons for children. They are created by the state but function independently. By combining the characteristics of these two forms of accountability and taking a child rights approach to their work, independent institutions offer a unique space for dialogue between society and the state, and between children and adults. The chapter first examines the concept of accountability and identifies the specific obstacles that arise in exacting accountability for children’s rights. It then analyses the particular features of independent human rights institutions that enable them to contribute to bridging social and formal accountability mechanisms and explores why they are a particularly valuable solution for children’s rights specifically. It concludes with some considerations on the challenges faced by independent institutions in carrying out their mandate and the need for accountability mechanisms for institutions themselves. The chapter builds extensively on research carried out at the unicef ­Office of Research Innocenti on governance and children’s rights. It elaborates in particular on multi-year research on independent human rights institutions for children, but offers a new perspective on these findings by focusing on the accountability gap. 2

Accountability and Children’s Rights

2.1 Defining Accountability for Children’s Rights Accountability represents the link between those in power and citizens, and between political commitments and their implementation.7 Accountability is therefore characterised as a relationship: ‘Accountability from a human rights perspective refers to the relationship of Government policymakers and other 7 Nguyen ltp ‘Child-responsive Accountability: Lessons from social accountability’ Working Paper 2013–04 (2013) 6.

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duty-bearers to the rights-holders affected by their decisions and actions.’8 It represents the ‘obligation of power-holders to take responsibility for their actions’ and expresses the rights and responsibilities that exist between people and the institutions … that have an impact on their lives.’9 Accountability implies that the two parties are dynamically engaged, ‘a responsive and accountable state and responsible and active citizens’.10 It encompasses the obligation of those in authority to: (1) take responsibility for their actions, based on clear standards; (2) be answerable to those affected, by providing reasoned justifications for actions taken; and (3) Be subject to sanction if their conduct or explanation is found wanting so that corrective and remedial action can be taken.11 From a human rights perspective, the accountability relationship further implies that all state institutions are accountable to all rights-holders. Accordingly, each and every citizen – understood broadly as anyone affected by state actions regardless of nationality, age, legal status or capacity – should have the opportunity to hold those in power to account. Accountability is thus a social contract which takes into consideration the interests of the poorest and most marginalised, and on which a democratic and inclusive society is based.12 This includes children. Child-responsive accountability involves two dimensions, accountability to children and accountability for children’s rights.13 Accountability to children implies that children, as full members of society, are included in the accountability relationship, like all citizens:

8

ohchr and Centre for Economic and Social Rights Who Will Be Accountable? Human Rights and the Post-2015 Development Agenda (2013) 10. 9 United Nations Development Programme ‘Fostering social accountability: From principle to practice – Guidance note’ (2010) quoted in Nguyen ltp ‘Child-responsive accountability: Lessons from social accountability’ Working Paper 2013–04 (2013). 10 undp Reflections on Social Accountability: Catalyzing Democratic Governance to Accelerate Progress towards the Millennium Development Goals (2013). 11 ohchr and Centre for Economic and Social Rights Who Will Be Accountable? Human Rights and the Post-2015 Development Agenda (2013). 12 undp Reflections on Social Accountability: Catalyzing Democratic Governance to Accelerate Progress towards the Millennium Development Goals (2013). 13 Nguyen ltp ‘Child-responsive Accountability: Lessons from social accountability’ Working Paper 2013–04 (2013).

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child-responsive accountability, as a principle, implies that those responsible for realising child rights are accountable to children and that children have the right to participate in processes to exact that accountability, according to their evolving capacities.14 Accountability for children’s rights, on the other hand, refers to the standards against which public action is measured and accountability exacted – specifically, the crc and other relevant child rights standards, laws and regulations. Taking into consideration both dimensions is essential to the implementation of the spirit and letter of the crc. Formal and Social Accountability: Complementary Forms of Accountability Accountability is traditionally divided into two streams, formal accountability and social accountability. Formal accountability is centred on state institutions. It includes:

2.2

• political accountability, such as parliamentary oversight and the responsibility of the government before the parliament and more generally the checks and balances between traditional political powers; • administrative accountability, which includes mechanisms put in place by administrations themselves to ensure adequate performance; • judicial accountability before the courts; • and independent oversight bodies and quasi-judicial accountability.15 The formal accountability process is framed by legislation and strict rules. As its name indicates, it tends to be heavily formalised. Its activation can be dependent on political considerations. For example, the possibility to engage the responsibility of the government on a particular issue depends on the political weight this issue enjoys on the political agenda and how responsive the electorate is to that particular question. Social accountability designates ‘a broad range of activities in which individuals and civil society organisations act directly or indirectly to mobilize demand for accountability’.16 The objective of social accountability initiatives is 14 Nguyen ltp ‘Child-responsive Accountability: Lessons from social accountability’ Working Paper 2013–04 (2013) 10. 15 ohchr and Centre for Economic and Social Rights Who Will Be Accountable? Human Rights and the Post-2015 Development Agenda (2013) 32–43. 16 ohchr and Centre for Economic and Social Rights Who Will Be Accountable? Human Rights and the Post-2015 Development Agenda (2013) 44.

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to improve the quality of governance (especially by exposing corruption), to increase the effectiveness of development (particularly by enhancing transparency in the delivery of public services), and to empower poor people with information on their rights and an increase in their voice in the management of public affairs.17 Although such initiatives may be facilitated by the state, they primarily rely on citizens’ engagement. They are demand-driven and operate from the bottom up.18 These forms of accountability are typically informal, in the sense that they do not follow procedures set by law or other official rules. The legal framework, however, may regulate the environment in which social accountability initiatives take place, for example, in relation to the right of association, access to information or freedom of expression. Although many factors come into play in determining the effectiveness of accountability mechanisms, research has highlighted the critical relevance of the articulation between social and formal accountability mechanisms.19 Formal accountability represents an ‘internal’ form of accountability, while social accountability operates outside the institutional system. Consequently, social accountability mechanisms help strengthen traditional accountability channels.20 It has been noted that the level of democratisation, strength of political will, and the existence of enabling legal frameworks, political incentives and sanctions, are decisive in ensuring the impact of social accountability initiatives. The rationale is that to be sustainable and ensure ongoing citizen mobilisation, social accountability must yield actual change. As has been pointed out: ‘Social accountability mechanisms have impact when they can trigger traditional accountability mechanisms such as investigations, inspections and audits.’21 17

18 19 20

21

Malena C et al. ‘The role of civil society in holding government accountable: A perspective from the World Bank on the concept and emerging practice of “social accountability”’ (2004), quoted in unicef Rights in Principle and Accountable in Practice: Child Rights and Social Accountability in the Post-2015 World, Workshop report, London 3–4 March 2014. unicef Rights in Principle and Accountable in Practice: Child Rights and Social Accountability in the Post-2015 World, Workshop report, London 3–4 March 2014. McGee R & Gaventa J ‘Shifting Power? Assessing the impact of transparency and accountability initiatives’ Institute of Development Studies (2011) 22. Malena C et al. ‘The role of civil society in holding government accountable: A perspective from the World Bank on the concept and emerging practice of “social accountability”’ (2004). Joshi A ‘Review of impact and effectiveness of transparency and accountability initiatives: Annex 1 Service Delivery’ (2011) prepared for the Transparency and ­Accountability

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On another level, the effectiveness of accountability mechanisms requires that both forms of accountability borrow from each other’s characteristics. On the one hand, social accountability mechanisms gain from being institutionalised, as this expands their influence on the formal system. On the other hand, formal accountability mechanisms benefit from being transparent and open to civic engagement.22 It is therefore critical to focus on how they interact. However, in practice an important gap remains between these forms of accountability, primarily due to the imbalance of power between citizens and the state – and the gulf is even wider when it comes to children and their rights. The Double Gap between Formal Accountability and Social Accountability The discrepancy between formal and social accountability results from the uneven distribution of power and influence between those in a position of authority and regular citizens. For children, this gap takes on an additional dimension, as ‘children have to overcome two levels of unequal power relationships: between state and society but also that between children and adults’.23

2.3

2.3.1 Society and the State The ability of society to interact with the state and influence policy and the practice of those in a position of authority depends on a number of factors that are largely controlled by the state. While spaces for participation may be  ­created by civil society itself – whether through meetings, the media or Internet – they rely on the existence of a conducive and open environment in which freedom of speech and association is guaranteed. For citizens to be heard there must be a channel through which they can voice their concerns to duty-bearers and have these concerns heard and acted upon. This requires openness from the state and the facilitation of opportunities for interactions. However, rights-holders also have a certain level of agency in this process, depending on their position. It has been found that the success of accountability initiatives can be explained largely by the level of authority or degree

22

23

I­nitiative Workshop October 2010, quoted in McGee R & Gaventa J ‘Shifting Power? ­Assessing the impact of transparency and accountability initiatives’ Institute of Development Studies (2011) 23. Malena C et al. ‘The role of civil society in holding government accountable: A perspective from the World Bank on the concept and emerging practice of “social accountability”’ (2004) 4. Nguyen LTP ‘Child-responsive accountability: Lessons from social accountability’ Working Paper 2013–04 (2013) 7.

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of power the ‘account seeker’ has over the ‘account holder’.24 In most cases, rights-holders have limited means of holding duty-bearers to account, due to an asymmetry of information and imbalance of authority and enforcement capacity. Furthermore, it has been argued that an additional important element lies in the redistribution of power accountability mechanisms and the power contests that underlie them. Put differently, policy change sought through accountability mechanisms may change the status quo, challenge the interests of specific groups, and lead to redirection of resources towards other groups or causes. However, this also represents the strength and success indicator of accountability initiatives, that is, the extent to which they can contribute not only to significant change in favour of the most marginalised but also to shifting the balance of power among groups within society, and between society and the state.25 This approach has a particular resonance when considering children and their rights, which consistently enjoy limited political visibility and influence vis-à-vis the state. 2.3.2 Children and Adults Children experience yet another level of political disadvantage in holding dutybearers to account. Barriers to accountability for children’s rights point to the status of children in society and the need for intermediaries to claim their rights. Because they often are considered ‘minors’, enjoy limited legal capacity, and require specific, child-sensitive mechanisms to engage in accountability processes, children risk being left at the sidelines of accountability initiatives. While the literature on accountability frequently refers to strategies for ensuring that marginalised groups are included in accountability initiatives, the specific situation of children receives limited attention. When considering elections as a primary mechanism to hold political representatives accountable before citizens, no mention is made of the fact that a large part of the population – children – does not have access to this mechanism.26 Ensuring that children’s rights are taken into account in formal accountability mechanisms therefore represents a double challenge. Given that children do not have the right to vote and the realisation of their rights often fails to attract public attention, traditional political accountability mechanisms, while 24 25 26

McGee R & Gaventa J ‘Shifting power? Assessing the impact of transparency and accountability initiatives’ Institute of Development Studies (2011) 20. McGee R & Gaventa J ‘Shifting power? Assessing the impact of transparency and accountability initiatives’ Institute of Development Studies (2011) 29. See, for example, Ackerman JM ‘Social accountability in the public sector: A conceptual discussion’ Social Development Papers, The World Bank (2005).

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actionable in principle, may not be effective for children’s rights. Secondly, the accessibility of accountability mechanisms to children is restricted. In order to access formal accountability mechanisms, children consistently need some form of representation. They usually need legal representation to access the justice system. Unlike other groups that may suffer from exclusion from political participation but formally have access to political institutions, children cannot have their own representatives in parliament. They cannot be present as ministers or officials in administrations charged with fulfilling their rights. In other words, children are structurally outside the system that protects their rights. Unless proactive steps are taken to involve them in accountability structures, children are not in a position to influence the system from the inside, through formal accountability mechanisms. Similarly, children’s ability to be involved in social accountability processes depends largely on the existence of specific mechanisms for child participation and a conducive context. Social accountability mechanisms tend to be designed and led by and for adults, thus restricting children’s access, unless child-sensitive approaches are expressly considered. Children’s ability to have direct influence and exercise some form of political power is therefore significantly limited. The Committee on the Rights of the Child has underlined that [c]hildren’s developmental state makes them particularly vulnerable to human rights violations; their opinions are still rarely taken into account; most children have no vote and cannot play a meaningful role in the political process that determines Governments’ response to human rights; children encounter significant problems in using the judicial system to protect their rights or to seek remedies for violations of their rights; and children’s access to organizations that may protect their rights is generally limited.27 These considerations reveal the importance of the existence of a mechanism which can provide intermediacy between children and adults, give visibility to children’s rights, and adequately support children’s best interests in the balance of power. The existence of such machinery in the political system is an important element to help close the gap between formal and social accountability and provide a bridge between informal, citizen- and child-led initiatives and formal institutions in order to ­advance the implementation of the 27

Committee on the Rights of the Child, General Comment No. 2 on the role of independent national human rights institutions in the promotion and protection of the rights of the child, CRC/GC/2002/2 (2002) at 5.

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Convention in children’s daily lives. The unique nature of independent human rights institutions for children enables them to perform such a function, and this function is precisely at the core of the accountability approach they foster. But how do they do so? In a political system made by and for adults, how do independent institutions advance accountability for children’s rights? 3

Closing the Accountability Gap: The Unique Nature of Independent Human Rights Institutions for Children

3.1 A Specific Accountability Mechanism Independent human rights institutions for children – also called ombudspersons for children, children’s commissioners, Defensoría del niño or Défenseur des enfants – are an accountability mechanism of a very specific kind. Independent human rights institutions for children are defined as ‘public bodies with an independent status, whose mandate is to monitor, defend and promote human rights, with a focus on children’s rights’.28 They belong to a particular type of public structure, one designed to strengthen accountability within the institutional system by belonging to that system while having an independent status. For this reason, they were considered early on as a critical instrument for the implementation of the Convention. While a handful of such institutions existed in 1996, their number has grown rapidly. unicef Office of Research Innocenti data suggest that approximately 200 institutions are in operation in over 70 countries. With the exception of countries, such as Norway and Costa Rica, which created institutions before the Convention was adopted, these institutions have been established after the ratification of the crc. Independent human rights institutions for children include both national human rights institutions (nhris) with a mandate explicitly referring to children’s rights and/or a department devoted to the rights of the child, and specialised independent child rights bodies such as children’s commissioners and ombudspersons for children. The Paris Principles on national human rights institutions, adopted in 1993 by the un General Assembly,29 represent the main international standard applicable to them, together with General Comment No. 2 of the Committee on the Rights of the Child, which addresses the

28 29

United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 1. Principles relating to the status of national institutions (1993), A/RES/48/134.

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specificity of these institutions in relation to their child rights mandate.30 The Committee on the Rights of the Child has been their most relentless advocate, emphasising their importance in general comments on various issues as a general measure of implementation for the Convention, and systematically urging their creation and strengthening in its concluding observations on States Parties’ reports. It has been found that across regions the crc Committee has been the ‘single greatest driver of the move to establish independent human rights institutions for children’.31 These institutions are unique in the domestic institutional landscape. Their status is formalised in that their mandate is enshrined in legislation – sometimes even in the constitution – and their resources come from the state budget. They hence belong to the formal state system. However, their role and mode of functioning is flexible and little formalised. They therefore combine the status of formal accountability institutions with the functioning of informal mechanisms. They have been described as the ‘oil in the machine’, bringing an explicit children’s focus to traditional adult-oriented systems, filling gaps in checks and balances as direct accountability mechanisms, making sure that the impact of policy and practice on children’s rights is understood and recognized, and supporting processes of remedy and reform when things have gone wrong or procedures or policies are inadequate. They bring flexibility to political and institutional systems that can otherwise be rigid and inaccessible to the public, especially to children or those working on issues concerning them.32 Their ability to contribute to closing the gap between social and formal accountability and to enhance accountability for children’s rights is due to several characteristics: their independence; their capacity to act as bridge-builders; their accessibility; and their complaint mechanism. 3.2 Independence: Building Trust at All Levels Independence is a defining feature of these institutions. A large body of literature has elaborated on this concept and how it is implemented in practice. 30

31 32

Committee on the Rights of the Child, General Comment No. 2 on the role of independent national human rights institutions in the promotion and protection of the rights of the child, u.n. Doc. CRC/GC/2002/2 (2002). United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 145. United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights: Policy Summary (2012) 5.

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While a review of the nature and degree of independence of child rights institutions is beyond the scope of this chapter, it is important to underline that independence is necessarily relative. Because institutions work inside the system they are mandated to monitor, they hold some degree of interdependence within this system.33 What matters, though, is whether an institution operating in a given context is perceived as independent enough to serve children’s best interests – and the interests of citizens in general, without any other ­political agenda. The perception of independence is critical in establishing trust with actors across the political spectrum and in society. It enables institutions to enjoy the confidence of civil society and hear issues and challenges arising in people’s daily lives. In other words, it grants institutions direct access to forms of social accountability, whether these are structured as initiatives or derive from individual claims. A Latin American opinion survey, for example, has found that independent institutions in the region usually rank among the most trusted institutions in the political system.34 Thanks to the trust it enjoys by the population in a highly sensitive environment, the Defensoría del Pueblo in Colombia has been able to develop an early warning system for rights violations in the context of the civil conflict. Under this procedure, the institution receives reports of risks and threats from the population, including recruitment of children by armed groups, sexual violence and forced disappearance. After carefully assessing their likelihood, it informs state authorities, which in turn take necessary steps to prevent the violation from occurring.35 The structure and composition of the office plays an important role in the way the institution is seen by the public. The appointment process for the head of the institution is of critical importance. However, other perhaps less obvious elements have been found to have a significant bearing on how the institution is perceived. The composition of the staff, for example, with representatives from groups that are traditionally marginalised in a given society, is a decisive element in building trust with these groups.36 For this reason, various child advocate offices in Canada, for example, have indigenous staff. On another level, the physical location of the office may have significant influence 33 34

35 36

United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights: Policy Summary (2012) 16. See Latin American Public Opinion Project, Vanderbilt University, available at http:// www.vanderbilt.edu/lapop/index.php (accessed 15 January 2015), quoted in unicef (2013) at 27. Linnarsson A & Sedletzki V ‘Independent human rights institutions for children: An actor for the protection of children’s rights during armed conflict?’ (2014) 36 hrq 460. United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 26.

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on perceptions of independence. In South Australia, it has been reported that demands for services to the Children’s Interest Bureau increased when it physically relocated away from the department it was monitoring.37 In order to close the gap between social and formal accountability, it is equally important that the institution be perceived as independent by policymakers and state institutions. Here, too, the appointment process plays a significant role. While various practices coexist, appointment by the parliament with a qualified majority is probably the most effective means of ensuring transparency and legitimacy of the appointment across political parties.38 This enables the independent institution to build its work on political consensus and to be trusted to have some level of impartiality. As a result, it is more likely to be respected as an accountability mechanism by those it is designed to monitor and hold to account. Bridge-Builders: Creating a Space for Dialogue between Society and the State Building on the trust they enjoy as independent bodies yet part of the institutional system, independent human rights institutions for children are able to create a space for dialogue between civil society and the state. In countries where non-governmental organisation (ngo) coalitions on children’s rights already exist, independent institutions help them consolidate and are able to echo their recommendations. They may also join hands with ngos in order to monitor states’ actions for children’s rights. The Greek Ombudsman for Children’s Rights, for example, set up an ngo network in 2009 for monitoring implementation of the crc and facilitating cooperation between civil society and the state.39 Independent institutions have direct access to decision-makers. They are usually required to report annually to the parliament and/or the government. On this occasion, they are able to raise the concerns they have heard and investigated on the ground to those who are responsible for preparing, adopting and implementing laws and policies. The Défenseur des Droits in France, for 3.3

37

38 39

McBride M ‘Report on child advocacy and complaint resolution process’ (2006) Background paper for the bc Children and Youth Review, M. McBride & Associates Management Consulting Inc., 57, quoted in United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 26. United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 30. United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 135.

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example, submits a separate annual report on child rights to the parliament and presents it in a special session devoted to this issue on 20 November every year. This provides the opportunity to draw attention to critical issues affecting children in society and echo civil society voices to parliamentarians. Similarly, many institutions also submit a report to the government in which they can present their recommendations. Aside from regular reporting, independent institutions have direct access on an informal and regular basis to decision-makers. This helps them raise an issue for attention as soon as it arises. Whether because the law requires it or because there is an institutional practice, independent institutions are often called upon to comment on draft legislation or policies dealing with child rights. It gives them an opportunity to provide what can be called preventative accountability, by advising on the approach and consulting with civil society to do so. For example, one practice that has emerged consists in carrying out child rights impact assessment before a law or policy is adopted in order to assess the potential effect it may have on children’s rights. Scotland’s Commissioner for Children and Young People has developed a model for carrying out such assessments,40 which is considered a pioneering tool in this field. Independent institutions are able to build bridges with and among actors working across disciplines. This builds on their comprehensive child rights mandate, which reflects the fact that children’s rights are indivisible, interrelated and interdependent. When considering accountability, independent institutions connect formal institutions and civil society structures, which can include civil society organisations but also the business sector, professional corps, opinion, including religious, leaders and individuals. The fact that they are able to consider society as a whole, in all of its components, is in and of itself a channel to support both formal and informal accountability and clarify the role of each component of society in playing a role to advance children’s rights. For instance, in 2006 the Defensoria del Pueblo in Colombia, in partnership with unicef, carried out a study on the demobilisation of child soldiers, which examined the respective responsibility of each actor, governmental and non-governmental, including families and communities, at the national and local level.41 Independent institutions help create a space within formal institutions in order to ensure that children’s voices are heard. While children have few 40 41

unicef Canada, http://www.unicef.ca/en/policy-advocacy-for-children/international -practice (accessed 15 January 2015). United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 60.

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­opportunities to have their views directly taken into account in various processes, including legislative, administrative and judicial processes, independent institutions promote the creation of channels within formal structures to facilitate children’s access. This is another mechanism through which independent institutions help bridge the gap between children and state institutions. For instance, in 2008 in Finland, following consultations with Sami children, the Ombudsman for Children promoted the rights of Sami children in the Nordic countries to participate in the Sami Parliament through the creation of a youth council.42 Other institutions have supported spaces for child participation in the drafting of constitutions, such as in Nepal and Bolivia. As a result, the two texts – the interim Constitution of Nepal of 2007 and the 2009 Constitution of Bolivia – include provisions related to children’s rights.43 The capacity to interact and foster partnerships across actors, disciplines and levels largely draws on the institution’s independence. In many ways, this perspective addresses one element of the imbalance of power – between society and the state. However, another important function of independent ­human rights institutions for children consists in enabling children to have direct access to an accountability mechanism. This aspect is best approached in terms of accessibility – and one of its immediate corollaries, the existence of a complaint mechanism. 3.4 Accessibility As mentioned above, children have limited access to most formal institutions. Whether because such institutions do not have legal capacity (courts) or because their mechanisms are not child-sensitive or providing opportunities for child participation (parliament), there are numerous barriers to children’s access to accountability mechanisms, including mechanisms for complaints, remedies and redress, when state actors are not fulfilling their role or children’s rights are not realised or are being violated. Independent institutions are directly in contact with children. In addition to the wide variety of mechanisms they have established to hear children’s voices, they also have a mandate and function that enables direct access by children because it is not linked to their legal capacity. Many institutions – a quarter of those reviewed in the unicef study – have a legal mandate that explicitly requires them to interact with children and seek 42 43

United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 98. United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 98.

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their views as part of the institution’s regular work.44 Yet even those with no specific legal mandate to do so have developed child participation structures, recognising that it is essential to their work. Structures for child participation can be permanent consultative councils set up by the human rights institution to get ongoing feedback from a group of children – which strengthens its capacity to provide views during the process. Most institutions in Europe and in common-law countries have established such councils, but the practice is currently expanding to other regions, such as Latin America. An interesting example is where a child participation structure established by an independent institution evolves into a monitoring mechanism for holding state authority to account. In El Salvador, the Unidades de Difusión Juvenil de Derechos Humanos, created by the Procuraduría para la Defensa de los Derechos Humanos and composed of young volunteers, was initially designed to raise awareness on human rights at the local level. Yet their activities have evolved towards monitoring state action.45 Child participation in the work of the institution can also be performed through ad hoc consultations on a specific occasion or topic, sometimes with a specific group of children. Institutions have supported child-led research, involving children with particular vulnerabilities. The Ombudsman for Children in Ireland, for example, set up a team composed of an adult and two formerly separated young people to conduct research in the city of Dublin with children who were separated from their parents or living outside their country of origin.46 Geographic and physical accessibility of independent human rights institutions for children is an important determinant of their ability to bridge social accountability and formal accountability. Geographic accessibility is a enabling factor for the diversity of views an independent institution has access to and is a guarantee that the voices it brings to decision-makers are not only those closest to the capital city but also include those from the field and from people living in remote locations. Independent human rights institutions for children have developed various strategies to reach out to those located 44 45

46

United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 86. Procuraduría para la Defensa de los Derechos Humanos Annual Report 2010–2011 (2011) pddh, 234 quoted in United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 88. Charles K Separated Children Living in Ireland: A Report by the Ombudsman for Children’s Office, Dublin (2009), quoted in United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 88.

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remotely from capital cities, where they are usually based along with other state institutions, or from the main city of the region, when they operate at the subnational level. One important tool has been the establishment of local offices, which represent the institution at the local level and are therefore more knowledgeable of local circumstances, are in a position to consult with citizens and other civil society actors locally, and handle complaints concerning children at the local level. Many independent human rights institutions for children in Latin America have local defensorías, which handle cases at the community level and help solve issues involving local authorities. This mechanism is important in supporting access for rural and indigenous communities. In Peru, for example, over 844 local Defensorías del Nino y del Adolescente dealt with a total of more than 130,000 cases in 2010. Evidence collected across regions has shown that the creation of decentralised offices has significantly enhanced institutions’ accessibility.47 Another way through which independent institutions reach out to remote areas is with field trips, including ones from local offices, which are usually located in bigger cities. The Afghanistan Independent Human Rights Commission, for example, has set up a child rights field monitoring team, while the Comisionado Nacional de los Derechos Humanos in Honduras uses mobile units to raise public awareness of its existence, collect complaints and inform the public about pending cases and the outcome of investigations.48 One of the challenges of social accountability is ensuring that mechanisms are inclusive and ensure the participation of the most marginalised and excluded in society. There are many grounds for social exclusion and they often tend to combine. The objective is to ensure that the specific perspectives and experiences of children who are in particularly difficult circumstances inform state actions and that those in power are also accountable to those who are the most invisible and have the least political clout yet are most in need of state support to have their rights realised. Most institutions have a specific mandate to visit care centres and schools in order to monitor children’s conditions and give them the opportunities to share their views. In Ontario (Canada) the Office of the Provincial Advocate for Children and Youth makes visits on a monthly basis to special schools for hearing- and vision-impaired children and/or children with severe learning disabilities in order to enable them to share their views on access to services. 47 48

unicef (2013) 92. United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 92.

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The fact that staff physically visit students is important, as they often have difficulties using modes of communication.49 3.5 Complaint Mechanism Remedies are an essential channel for accountability. They constitute the primary way through which citizens can obtain redress when their rights are violated or unfulfilled. Although typically exercised individually, remedies can also be available to a group of persons collectively experiencing a violation of their rights. Remedies typically fall within the realm of the judiciary. Yet access to justice is a significant challenge for children. Complex proceedings, lack of information, and lack of trust and confidence make justice systems intimidating and often prevent children from accessing them. In many societies, it is culturally unacceptable for children to lodge complaints by themselves. Most importantly, children often lack the legal capacity to take a case to justice and need to act through their parents or legal representatives, which may represent an additional barrier, especially when conflicts of interests arise.50 The overwhelming majority of independent human rights institutions for children feature a complaint mechanism, through which they can handle complaints on individual violations of children’s rights and mediate a solution. Children can file complaints directly. There is no requirement attached to legal capacity, the procedure is free of charge, and limited formalities are usually required. A simple email or a phone call is usually sufficient to prompt an investigation. The complaint mechanism can provide an effective tool for contesting decisions or pointing to the negative consequences of policies on children’s rights. It further brings to the attention of the institution systemic issues that need to be highlighted to decision-makers and addressed. The mandate of the Office of the Child Advocate of New Brunswick (Canada) provides that it can ‘receive and review a matter relating to a child, youth or group of children or youths’.51 As in other areas of their work, independent human rights institutions deal with complaints with a flexible approach geared towards finding a satisfactory 49 50 51

United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 95. Office of the High Commissioner for Human Rights Access to Justice for Children Report of the United Nations High Commissioner for Human Rights A/HRC/25/35 (2013). S. 13(1)(a) of Chapter C-2.7, the Child and Youth Advocate Act, 26 June 2007 (New Brunswick, Canada), quoted in United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013).

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solution rather than strictly abiding by the law. Institutions are usually not in a position to issue binding decisions in the way courts do. Instead, they mediate a process between parties for a satisfactory solution in the best interests of the child or children concerned.52 The effectiveness of the mediation process, however, partly relies on the existence of strong investigative powers and the ability to bring a case to court. It is the interaction between soft power and hard power that enables independent institutions to exact accountability. By investigating specific cases, independent institutions have the ability to hold those in power to account for action – or inaction. In Peru for example, the Defensoría del Pueblo handled a case of inaction by authorities following reports of the sexual abuse of children by a teacher; the teacher, as well as those who had obstructed the judicial process, were prosecuted.53 Individual complaints are a critical instrument for accountability and for closing the gap between children’s experiences and formal accountability. They constitute a direct form of redress. They may lead to direct change in state actions concerning a particular case – whether at an individual or collective level. Because their filing and handling follows flexible procedures, they constitute an important child-sensitive mechanism. They also represent a way for institutions to get first-hand information on the challenges faced by children in society and advise on policies to address them. 4 Conclusion Independent human rights institutions for children are well positioned in the institutional system to close the gap between formal and social accountability for children’s rights. For this reason, they have been recognised in many countries as a useful instrument to advance the implementation of the crc. The many activities and initiatives they have carried out demonstrates that they strive to fulfil this role by devising channels to collect children’s views and bring them to policy-makers. However, in carrying out their mandate they meet with a similar set of obstacles they seek to address when promoting state institutions’ accountability. Referring back to the dichotomy of social and formal accountability, independent institutions are confronted with a number of challenges in making effective use of their competencies. 52 53

United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 119. United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 111.

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This chapter has shown that independent institutions are equipped with flexible rules and ways of functioning, enabling them to have direct contact with children. While many institutions have developed innovative ways of interacting with children and seeking their views, accessibility constitutes a major concern. Existing surveys have provided evidence that independent institutions are little known by the general public, let alone by children. The proportion of complaints directly submitted by children remains extremely low, and even in the best cases is rarely more than 10 per cent of the total number of complaints. In many offices, limited capacities, especially in terms of staff and resources, make it difficult to undertake large-scale consultations with children. Furthermore, the level of skills required to interact with children, especially children who are marginalised, may not be available to all offices, particularly those located in countries where capacities in this field are weak. Although several institutions have been successful in creating spaces for dialogue between children and state institutions and echoing children’s voices, many complain that decision-makers fail to follow up on their recommendations. This does not only demonstrates the difficulties they face in fulfilling their role as a formal accountability mechanism within the very system that created them, but, by jeopardising concrete results, such lack of follow-up also significantly undermines their long-term influence and the trust they enjoy from civil society, in particular children, ultimately threatening their existence and sustainability. On another level, independent human rights institutions are themselves subject to accountability mechanisms that aim to ensure their performance and answerability for their actions. These mechanisms are not meant to interfere with the institutions’ independence. Yet in a democratic system, they guarantee that, like all public institutions, they are under scrutiny. Independent human rights institutions for children are usually required to report to the parliament and/or government. The report on their activities may be discussed valuably in the public domain. Civil society organisations, and sometimes the media, provide feedback on their performance by pointing to their insufficiencies or supporting them when they are at risk. International bodies, including un treaty bodies such as the Committee on the Rights of the Child as well as international networks of independent institutions, play a significant role in monitoring independent institutions’ mandates and activities. International networks in particular usually have the power to sanction institutions that do not abide by relevant standards by issuing them a warning or even excluding them. Overall, few independent human rights institutions for children have developed their own mechanisms to assess their effectiveness and review their

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practices as needed. A limited number have initiated comprehensive external evaluations, but this is an area that could be strengthened. In spite of these difficulties, independent human rights institutions for children have yielded concrete results for children’s lives. Whether ensuring that state authorities take action to prosecute perpetrators of rights violations, that local administration takes the necessary steps for a family to receive potable water,54 that children are consulted in decisions that affect them, or that tax reform considers children’s best interests,55 independent human rights institutions for children have increasingly demonstrated their role as an accountability mechanism within national systems. Their next challenge, with the entry into force of the third Optional Protocol to the crc on a communications procedure, will be to help address another critical missing link in the accountability chain, by bringing children’s voices to international accountability mechanisms as yet another channel for holding public authorities to account. Bibliography Journal Articles

Linnarsson A & Sedletzki V ‘Independent human rights institutions for children: An actor for the protection of children’s rights during armed conflict?’ (2014) 36 HRQ.

Papers

Ackerman JM ‘Social accountability in the public sector: A conceptual discussion’ (2005) Social Development Papers, World Bank. Gibbons ED ‘Social accountability initiatives to achieve results and equity for children’ Background Paper (2014) UNICEF. Malena C et al. ‘The role of civil society in holding government accountable: A perspective from the World Bank on the concept and emerging practice of “social ­accountability”’ (2004).

54 55

Defensoría de los Habitantes, Annual Report 2008–2009, quoted in United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 112. Australian Capital Territory Children and Young People’s Commissioner, New South Wales Commission for Children and Young People, Queensland Commission for Children and Young People and Child Guardian, Commissioner for Children Tasmania and Western Australia Commissioner for Children and Young People (2008), The Tax Review: Improving outcomes for children and young people – Submission to the Australia’s Future Tax System Review Panel, quoted in United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013) 63.

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McGee R & Gaventa J ‘Shifting power? Assessing the impact of transparency and ­accountability initiatives’ (2011) Institute of Development Studies. Nguyen LTP ‘Child-responsive accountability: Lessons from social accountability’ (2013) Working Paper 2013–04, Florence: UNICEF Office of Research.

Reports

Office of the High Commissioner for Human Rights Access to Justice for Children (2013) Report of the United Nations High Commissioner for Human Rights A/HRC/25/35. Office of the High Commissioner for Human Rights and Centre for Economic and ­Social Rights Who Will Be Accountable? Human Rights and the Post-2015 Development Agenda (2013). Save the Children, OECD, UNICEF, Child Rights and Governance Roundtable Report and Conclusions (2011). United Nations Children’s Fund Rights in Principle and Accountable in Practice: Child Rights and Social Accountability in the Post-2015 World (2014) Workshop report. United Nations Children’s Fund State of the World’s Children 2015: Reimagine the Future: Innovation for Every Child (2014) United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights: Policy Summary (2012). United Nations Children’s Fund’s Office of Research Innocenti Championing Children’s Rights (2013). United Nations Development Programme Reflections on Social Accountability: Catalyzing Democratic Governance to Accelerate Progress towards the Millennium Development Goals (2013).

chapter 11

The Role of International Law in the Judicial Interpretation of New African Children’s Laws: The Kenyan Example Godfrey O. Odongo Abstract Most African countries have acceded to children’s rights norms enshrined in international and regional treaties and proceeded to domesticate these norms by enacting new laws. This chapter discusses the Kenyan example, focusing on challenges to the judicial enforcement of key children’s rights norms. The chapter’s central argument is that in order for the norms contained in the crc and other international laws to positively impact the legal status of children’s rights in domestic legal orders, there is a need for broad and far-reaching steps beyond the drafting of specific children’s laws. Law reform processes must clarify the status of new laws in the overarching legal order and ensure congruency between child-specific laws and other laws, including constitutions. Courts should also be empowered to examine and engage with the applicability of international law in the domestic legal order.

1 Introduction The primary children’s rights treaty, the un Convention on the Rights of the Child (crc), along with its African counterpart, the African Charter on the Rights and Welfare of the Child (acrwc or African Children’s Charter), is widely accepted in the African context. All African states are parties to the crc, and a majority of states have ratified the African Children’s Charter.1 The ratification of these treaties appears to have been the basis for a trend to domesticate international children’s rights norms. More than 34 constitutions in African countries mention children’s rights.2 Many African countries

1 As of April 2012, 46 out of 54 Member States of the African Union had ratified the Charter. 2 Sloth-Nielsen J ‘Domestication of children’s rights in national legal systems in the African context: Progress and prospects’ in Sloth-Nielsen J (ed) (2008) Children’s Rights in Africa: A Legal Perspective 53.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_012

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have ­enacted new child laws in recent years, notably Uganda, Ghana, Kenya, ­Rwanda, Nigeria, South Africa, Mozambique, Namibia and Malawi.3 The domestication of the crc and the acrwc across Africa through the passage of new laws has been hailed rightly as a revolutionary development,4 one which stands in stark contrast to the general record for domestication of human rights treaties in most African countries.5 In Kenya, the Children’s Act of 2001,6 the principal Kenyan law setting forth the rights of children, was, and arguably remains, the first comprehensive law to give effect to any international human rights treaty to which the country is a party.7 But, while appreciating the enactment of such new legislation, the un Committee on the Rights of the Child has emphasised that child law reform cannot be seen as a ‘one-off’ ­process: instead it should be a comprehensive, continual exercise involving a holistic review of all domestic legislation and related administrative guidance.8 3 See African Child Policy Forum ‘Realizing their rights: Harmonization of law for children in Eastern and Southern Africa’ (2007). 4 Sloth-Nielsen J ‘Domestication of children’s rights in national legal systems in the African context: Progress and prospects’ in Sloth-Nielsen J (ed) (2008) Children’s Rights in Africa: A Legal Perspective 65. 5 See generally Heyns C (ed) (2004) Human Rights Law in Africa (vol 2). In general, Africa has a dismal record when it comes to giving legal effect to human rights treaties in domestic legal orders, irrespective of whether a state’s legal system allows for the direct application of international law in its national context (monism) or requires passage of enabling domesticating legislation (dualism). For example, the record for specific anti-torture laws pursuant to obligations under the un Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (un cat), the un International Covenant on Civil and Political Rights and the African Charter on Human Rights and Peoples Rights, which prohibit the use of torture and other ill-treatment, is comparatively poor, with only a handful of more than 40 African State Parties to the un cat compliant with the obligation to enact specific anti-torture laws. Of the three East African countries, only Uganda has put in place such legislation and even then only recently, in 2012. See Redress ‘Torture in Africa: The Law and Practice: Regional Conference Report’ (2012) discussing at page 5 that ‘there is significant divergence in the status and implementation of international law at the domestic level, which in many cases results in a lack of application. This is attributed to the absence of domestic implementing legislation’. 6 Children’s Act, Chapter 141 Laws of Kenya. 7 Odongo GO ‘The domestication of international standards on the rights of the child: A critical and comparative evaluation of the Kenyan example’ (2004) 12(4) International Journal of Children’s Rights 419–30. 8 See un Committee on the Rights of the Child, General Comment No. 5 (2003) on general measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para  6), para. 18. The Committee states that it ‘believes a comprehensive review of all

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For Kenya, the lack of a wide-ranging review was evident against the backdrop of a previous constitutional framework devoid of recognition of children’s rights, a situation which since then has been remedied by the promulgation in 2010 of a new Constitution9 according substantial recognition not only to children’s rights norms but also the role of international law.10 Kenyan courts have thus had to adjudicate children’s rights issues in uncertain circumstances, being at times constrained in advancing international legal precepts on children’s rights even with the reality of a progressive legal enactment.11 This chapter discusses the emerging jurisprudence of Kenyan courts – both positive and negative to children’s rights – to draw lessons that could inform the broader African context. Based on a review of this jurisprudence, the chapter concludes that ongoing child law reform processes across much of Africa must be comprehensive and engage with the wider legal and practical framework in which they occur domestically. 2

Enforcing Two Key crc Principles: The Best Interests of the Child and the Right to Non-discrimination

Kenyan family law has long applied the principle of the best interests of the child to guardianship and custody issues, with examples of significant court decisions in this regard dating as far back as four decades ago.12 However, since

9 10

11

12

domestic legislation and related administrative guidance to ensure full compliance with the ­Convention is an obligation […] The review needs to consider the Convention not only article by article, but also holistically, recognizing the interdependence and indivisibility of human rights. The review needs to be continuous rather than one-off [sic], reviewing proposed as well as existing legislation.’ Constitution of Kenya, 2010, in legal force since 27 August 2010. The Constitution repeals the earlier Constitution of Kenya, Act No. 5 of 1969 (as amended). Aside from the constitutional reality (which the un Committee did not deal with in its latest examination of Kenya’s progress), the Committee, while recognising the progressive nature of the Children’s Act, stated its concern that Kenyan national legislation needs further harmonisation and strengthening. See un Committee on the Rights of the Child, Concluding Observations on Kenya’s second periodic report, 19 June 2007, CRC/C/KEN/ CO/2, paras. 8 and 9, citing the need, inter alia, for legislative review of legal provisions applicable to orphans and vulnerable children. For early critiques of the Act, see Odongo (fn. 7 above) and Wabwile MN ‘Rights brought home? Human rights in Kenya’s Children Act, 2001’ in Bainham A & Rwezaura B (eds) The International Survey of Family Law (2005) 393–415. Odongo G ‘Caught between progress, stagnation and a reversal of some gains: Reflections on Kenya’s record in implementing children’s rights norms’ (2012) 12 African Human Rights Law Journal 117–18.

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coming into legal effect in March 2002, the Children’s Act has revolutionised the importance of this principle and extended its application to the panoply of matters affecting children – whether private (involving parents and families) or public (by government, courts and other public authorities).13 Section 4(2) of the Act provides: ‘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.’ The Act makes further provision in Section 4(3): All judicial and administrative institutions and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to – (a) safeguard and promote the rights and welfare of the child; (b) conserve and promote the welfare of the child […]14 What is notable is that there appears to be a conflict in the wording of these provisions. While in the first instance (Section 4(2)) the principle is to be considered as a ‘primary consideration’, in the second (Section  4(3)) it is to be given weight as ‘the first and paramount’ consideration. In a strict theoretical interpretation of the latter wording, the principle could be deemed as warranting a weightier consideration where there are other competing rights.15 However, in reality it would seem that a balancing of different and competing rights and interests of children against other interests and rights (for example, of adults) is always at play. In the Kenyan context this balancing has been most evident in legal disputes about children’s right to care and maintenance when viewed in the light of the parental rights and responsibilities enacted under the Act. Section 24 of the Act provides for parental responsibility for children born outside marriage: 13

14 15

Odongo G ‘Caught between progress, stagnation and a reversal of some gains: Reflections on Kenya’s record in implementing children’s rights norms’ (2012) 12 African Human Rights Law Journal 117–18. Emphasis added. Skelton A ‘The development of a fledgling child rights jurisprudence in Eastern and Southern Africa based on international and regional instruments’ (2008) 9 African Human Rights Law Journal 486, discusses the subtle difference between the wording of this principle in the crc (which refers to it as ‘a primary consideration’) and in the African Children’s Charter (which refers to it as ‘the primary consideration’).

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Where a child’s father and mother were not married to each other at the time of the child’s birth and have not subsequently married each other – (a) the mother shall have parental responsibility at the first instance; (b) the father shall subsequently acquire parental responsibility for the child in accordance with the provisions of Section 25 […] Section 25 sets out the process by which fathers of children born out of wedlock may ‘acquire’ or be deemed to have acquired parental responsibility.16 The question of the weight to be attached to the primacy of the principle of the best interests of the child under the Act in view of these provisions arose in the case r.m. (Suing thru Next Friend) J.K. CRADLE (The Children Fund) MILLIE & Another v Attorney General,17 decided by the High Court sitting as a Constitutional Court. The main issue sought to be addressed by the petition was whether Section 24(3) of the Children’s Act violates the plaintiff child’s right to protection from discrimination under Section 5 of the Act18 and the Constitution of Kenya applicable before 201019 (Section 82 of which provided for a right to non-discrimination), international conventions to which Kenya is party, including articles 2 and 18(1) of the crc20 and article 3 of the African

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The Children’s Act provides in Section 25(1): ‘Where a child’s father and mother were not married at the time of his birth, the court may, on application of the father, order that he shall have parental responsibility for the child; or the father and mother may by agreement (“a parental responsibility agreement”) provide for the father to have parental responsibility for the child.’ According to Section 25(2): ‘Where a child’s father and mother were not married to each other at the time of his birth but have subsequent to such birth cohabited for a period or periods which amount to not less than twelve months, or where the father has acknowledged paternity of the child or has maintained the child, he shall have acquired parental responsibility for the child, notwithstanding that a parental responsibility agreement has not been made by the mother and father of the child.’ [2006] eKLR (hereinafter referred to as ‘R.M. case/judgment’). Section 5 of the Act provides: ‘No child shall be subjected to discrimination on the ground of origin, sex, religion, creed, custom, language, opinion, conscience, colour, birth, social, political, economic or other status, race, disability, tribe, residence or local connection.’ Constitution of Kenya, 1969 (as amended), since replaced by Constitution of Kenya, 2010. Article 2(1) of the crc provides for the obligation of ‘state parties to 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 parents or guardian’s race, colour, sex language, religion, political or other opinion, national, ethnic or social origin property, disability birth or other status’. Article 18(1) provides: ‘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

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Children’s Charter,21 on the ground that the provisions ‘expressly discriminate against children born out of wedlock and fail to take into account the best interest of the child’.22,23 Rejecting the petition, the Court reasoned that Section 24(3) merely made a rational provision for children in a different factual situation rather than enacting an unfair and irrational differential treatment. According to the Court, it was the case that parental responsibility for children born out of wedlock could still be acquired by fathers under Section  25(1). According to Justices Nyamu and Ibrahim, the Children’s Act was a milestone in entrenching and securing the rights of the child and Section 24(3) is in our view a big improvement of the uncoordinated laws which dealt with parental responsibility before its enactment. Scrapping it from our law would go against the objects of the Act and the State responsibility to endeavor to create laws, aimed at securing the best interests of the child.24 In the Court’s view, despite the clear discriminative intent of these provisions of the Act, the purpose of the different treatment of the two categories of children was justified because ‘the principle of equality and of non-discrimination’ does not entail that all distinctions between persons are illegal: The equal protection provisions do not in our view require things which are different in fact or in law to be treated as though they are the same.

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may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.’ Article 3 of the African Children’s Charter provides for the obligation of State Parties to ensure that ‘[e]very child shall be entitled to the enjoyment of the rights and freedom recognized and guaranteed in this charter irrespective of the child’s or his/her parents or legal guardian’s race, ethnic group colour, sex, language, religion, political or other opinion, national ethnic or social origin birth or other status’. R.M. case (fn. 17 above), 1. Reliance was also placed on article 4 of the African Children’s Charter, which states that the best interests of the child are ‘the primary consideration’ in all actions concerning the child; on article 18(3) of the Charter, which provides that ‘[n]o child shall be deprived of maintenance by reference to the parents’ marital status’; on article 20(1) of the Charter on the primary responsibility of parents and other persons responsible for the upbringing and development of the child; and on the un Convention on the Elimination of all Forms of Discrimination Against Women (cedaw), article 2 of which outlaws discrimination against women and provides in article 16(1)(d) for ‘same parental rights and responsibilities’ for men and women and the primacy of the best interests of the child in all cases. R.M. case (fn. 17 above) 15.

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Indeed, the reasonableness of a classification would depend upon the purpose for which the classification is made. There is nothing wrong in providing differently in situations that are factually different. Unwedded mothers and their children are grouped together for the purpose of locating parental responsibility. This cannot be said to be an arbitrary or unreasonable differentia25 The r.m. decision had profound implications for the applicability of international children’s rights norms in Kenya. First, the Court was guided by the supremacy of the Constitution applicable at the time, despite the latter’s conflict with the applicable children’s norms enshrined in the treaties to which Kenya was party. In this case the principle that both parents have equal parental rights and responsibilities, subject to the principle of the best interests of the child, weighed against the provision in Section 82 of the Constitution that did not expressly prohibit ‘marital’, ‘birth’ or ‘other status’ as one of the grounds for non-discrimination. The Court contended that such an omission was deliberate as the Constitution had been amended most recently in 1997 to add ‘sex’ as a prohibited ground for discrimination. Accepting that Section 5 of the Children’s Act – which draws from the crc and the African Children’s Charter – was broader in its definition of discrimination because it included ‘birth’ and ‘other status’, the Court was of the view that if there were to be an argument about a potential conflict between the Act and the Constitution (which, in its view, there was not), the provision of the Act would be void to the extent of any conflict with the Constitution or purported broader legal protection.26 Secondly, after its analysis of comparative jurisprudence and principles,27 the Court went on to state that it should be guided by the provisions of treaties, including the crc, to which Kenya was party. However: 25

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R.M. case (fn. 17 above) 16–17. The Court relies on the un Human Rights Committee’s General Comment No. 18 on the right to non-discrimination, U.N.Doc.HRI/GEN/1/Rev.1 at 26 (1994), paras 7 and 8, for the view that prohibited discrimination ‘must have the purpose of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms’. It is in fact more arguable that, by legislating that parental responsibility for children born out of wedlock is contingent on marital status and requiring further procedural hurdles to be met before a father could be deemed to have parental responsibility, this provision had the effect of impairing or even nullifying the rights of this category of children. R.M. case (fn. 17 above) 13. The High Court drew guidance from the Bangalore Principles the Domestic Implementation of International Human Rights Norms, 1988/9, a set of principles adopted by two judicial colloquia of judges in Bangalore and Harare which had sought to provide guidance to judges on the application of international human rights law in domestic contexts.

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Clear constitutional provisions should prevail over those of the Conventions. It follows that the clear provisions of Section 82 [of the Constitution] and the limitations [excluding ‘marital’, ‘birth’ or ‘other status’ from the prohibited grounds for the right to non-discrimination] must prevail and we so hold. It is only where an Act intended to bring a Treaty into ­effect is itself ambiguous or one interpretation is compatible with the term of the treaty while others are not that the former will be adopted. This is in recognition with a presumption in our law that legislation is to be construed to avoid a conflict with international law.28 3

Parental Responsibility in Kenya’s New Legal Order

In 2010 Kenya ushered in a new constitutional order that included a substantive children’s rights clause,29 albeit with the provisions of the Children’s Act, including those relating to parental responsibility, remaining intact. Article 53(1)(e) of the new Constitution provides for the child’s right to parental care and protection, ‘which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not’. Article 53(2) explicitly provides for the ‘paramount importance’ of the best-interests principle ‘in all matters affecting the child’. Following this enactment, the question was whether the decision in the r.m. case could hold. The High Court recently had the opportunity to answer it in zak and Another v ma and the Attorney General,30 decided in May 2013 (the zak case). The petition was brought to the Court by the petitioner, a man known in the case by the abbreviation zak, who sought to assert parental responsibility for his two biological children while refuting such responsibility for two other children who had been born before his cohabitation with the mother of the children with whom he was now separated.

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The  Bangalore Principles state in effect that international law (whether human rights norms or otherwise) is not, as such, part of domestic law in most common law countries. Such law does not become part of domestic law until Parliament so enacts or the judges (as another source of law-making) declare that the norms thereby established are part of domestic law. See Kirby M ‘The road from Bangalore: The first ten years of the Bangalore Principles on the domestic application of international human rights norms’. Part of this speech is published as ‘The impact of international human rights norms: a law undergoing evolution’ (1995) 25 Western Australian Law Review 130. R.M. case (fn. 17 above) 18. Constitution of Kenya, 2010, art. 53. [2013] eKLR.

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To support his case, he argued that Section  24(3) of the Children’s Act (which was the subject of adjudication in the r.m. case) and Section 25 of the Act, by which he could either acquire or be implied to have acquired parental responsibility,31 were unconstitutional in the light of article 53(1)(e) of the Constitution. The petitioner also argued that the two provisions of the Act were discriminatory to fathers in his situation in view of article 27 (the equality clause) of the Constitution, which provides in part that [e]very person is equal before the law and has the right to equal protection and equal benefit of the law. Equality includes the full and equal enjoyment of all rights and fundamental freedoms. Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres …32 In dealing with these issues the Court was unequivocal that, while the petition had been brought by the father of the children seeking to assert his rights, the determination of the case involved the welfare of the children. Hence the Court was to bear in mind the principle that the child’s best interests are of paramount importance in every matter concerning the child.33 The Court held that a proper reading of the Children’s Act, Section  23 of which defines ‘parental responsibility’, means that such responsibility ‘goes over and above the provision of food’ and extends to ‘where the child will live and what he will wear, his education and health care, among others’, matters which should be the responsibility of ‘both parents’.34 The Court, noting the concession by the Attorney General, then declared Sections 24(3) and 25 of the Children’s Act unconstitutional and in violation of article 53(1)(e) with regard to the right of all children to parental care as the duty of both parents. Justice Mumbi Ngugi was categorical that: The Children[’s] Act must be read as imposing parental responsibility for children on both of their biological parents, whether they were ­married 31

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In particular the mother of the petitioner’s children. The first respondent argued that, because of their cohabitation and his provision of maintenance for the children for more than two years, the petitioner could be implied, under Section 25(2) of the Act, to have acquired parental responsibility for the two children born to another father. Constitution of Kenya, 2010, art. 27(1)–(3). zak case [2013] eKLR para. 19. zak case [2013] eKLR para. 22.

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to each other or not at the time of the child’s birth. The 2nd respondent [the Attorney General] has the responsibility, which I note, from its written submissions in this matter, it is fully alive to, to present the necessary amendments to Section 24(3) and 25 for enactment by Parliament. It must also take into account the provisions of Section 90 set out above,35 and any other provisions in the Act that violate the Constitution, when presenting the Act for amendment to ensure conformity with the Constitution.36 The Court rejected the petitioner’s arguments for his belief that he was not obliged to provide for his stepchildren, citing article 53(1)(e) of the Constitution and Sections 23 and 9437 of the Children’s Act to affirm such an obligation. Justice Ngugi stated: Looked at through the prism of the Constitution, particularly Article 53(2) which requires that the best interests of the child be the paramount consideration in any matter concerning the child, I believe that a stepparent in such circumstances must be held to have an obligation recognized in law to exercise parental responsibility as defined in Section 23 of the Children Act over his or her step-child. It would be an affront to morality and the values of the Constitution for a party who has had a relationship with a child akin to that of a father or mother to disclaim all responsibility and duty to maintain the child when he or she falls out with the parent of the child …38 35

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Section  90 of the Act provides: ‘Unless the court otherwise directs, and subject to any financial contribution ordered to be made by any other person, the following presumptions shall apply with regard to the maintenance of a child – (a) where the parents of a child were married to each other at the time of the birth of the child and are both living, the duty to maintain a child shall be their joint responsibility […] (e) where the mother and father of a child were not married to each other at the time of birth of the child and have not subsequently married, but the father of the child has acquired parental responsibility for the child, it shall be the joint responsibility of the mother and father of the child to maintain that child.’ zak case [2013] eKLR para. 29. Section 94(1) provides: ‘The Court may order financial provision to be made by a parent for a child including a child of the other parent who has been accepted as a child of the family.’ zak case [2013] eKLR para. 35, citing comparative jurisprudence of other courts: the decisions of the South Gauteng High Court, South Africa, in MB v NB (2008/25274) (2009) za gpjhc 76; 2010(3) sa 220 (gsj) (25 August 2009); the decision of the Family Court in

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The zak decision constitutes a landmark in several respects. First, by relying on the enabling children’s rights provisions in the Constitution of Kenya, 2010, it distinguishes the aspects of the High Court’s earlier decision in the r.m. case that effectively underplayed the progressive provisions of the Children’s Act (in particular the principle of the best interests of the child and broader protection of children’s rights to non-discrimination). Secondly, by relying on a constitutional framework more supportive of children’s rights than its predecessor, the Court underscores the fundamental importance of ensuring that child law reform processes look beyond the passage of progressive children’s rights laws and contemplate overarching constitutional and legal orders that may still inhibit the judicial enforcement of children’s rights. Thirdly, the fact that the zak decision does not engage directly with the provisions of the crc, the African Children’s Charter and other persuasive interpretations of Kenya’s human rights treaty obligations, is attributable to the reality of a more enabling legal order, one under which Kenya’s Constitution now includes a child rights clause that draws from and conforms to international children’s rights norms. 4

The State of Kenyan Law on Parental Responsibility since the zak Case

The relevant provisions of the Children’s Act, Section 24(3) and 25, that were impugned in the zak case are yet to be amended by the Kenyan Parliament in line with the court order. However, it is instructive that in the zak case the Court ordered the Attorney General to present for parliamentary consideration the necessary amendments to Sections  24(3) and 25 of the Act. It did not order that the sections should be repealed. Hence the import of the court order is that the amended wording of these provisions of the Act should ensure gender neutrality and not make the child’s right to parental care contingent on the marital status of parents, as currently phrased in the law. This interpretation of the court order is also in keeping with the reality that the most litigated provisions of the Children’s Act relate to disputes about the custody and maintenance of children. In the majority of these disputes Kenyan courts have consistently upheld the principle of the child’s best interests in determining the nature and extent of a parent’s responsibility. For example, s.b. v a.a.l (2010)39 involved issues Australia in Keltie & Keltie & Bradford (2002) FamCA 421 (21 June 2002); and the decision of the Supreme Court of Canada in Chartier v Chartier (1999) 1 S.C.R 242. 39 [2010] eKLR.

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of parental responsibility, custody, maintenance and child support in the context of family separation. The High Court decided that – based on the facts of the case, namely a longstanding cohabitation between the parents and the father’s regular material and other support for the four children and the children’s mother – the father could not turn around and deny the extent of his responsibility because of a dispute with the mother. The Court concluded that ‘neither the father nor the mother shall have a superior right or claim against the other in the exercise of such parental responsibility’.40 Consistent with the logic of enforcing the best interests of the child, the High Court has, in a long line of cases since 2003, affirmed the relevance of scientific proof of paternity through dna testing. The net effect of these cases is the principle that where there is sufficient reason, based on the facts of each case, for the court to order for dna testing, the best interests of the child trump arguments regarding the right to privacy and other rights on which parties have based their arguments in court against a court order in favour of dna testing.41 In c.m.s. v i.a.k. (suing through mother and next friend, c.a.o.)(Jan.  2012),42 Justice Mumbi Ngugi laid down the position in Kenyan law as follows: In determining a matter such as this, the court must of necessity weigh the competing rights of the child and the petitioner who is alleged to be the biological father. The right of the child to parental care takes precedence, in my view, particularly in light of the cardinal constitutional principle set out in Article 53(2) [of the Constitution] that in matters such as this, the paramount consideration is the best interests of the child […] An order for dna testing should be made if it is in the interests of the child and if a prima facie case has been made to justify such an order. Such an order would not in my view be in violation of any of the petitioner’s constitutional rights and would be in the best interests of the child.43 This principle has since been cited with approval by the High Court, in the case pkm v Senior Principal Magistrate Children’s Court at Nairobi and jw 40 [2010] eKLR. 41 See Ongoya EZ ‘The emerging jurisprudence on the provisions of Act No. 8 of 2001, Laws of Kenya – the Children’s Act’ (2007) 1 Kenya Law Review 221–4. 42 [2012] eKLR. 43 [2012] eKLR paras. 18 and 21 (emphasis added). In support of its position, the Court cited an earlier Kenyan High Court decision, MW-v-KC Kakamega hc Misc Application No. 105 of 2004 and a decision of the Indian High Court, Shri Rohit Shekhar v Shri Narayan Dutt Tiwari & Anr, IA NO 4720 of 2008.

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(March 2014).44 The Court held that in the event that a sufficient reason has been established for the need to determine paternity through dna testing, a court order to this effect would not violate the alleged father’s rights to dignity and privacy under articles 28 and 31 of the Constitution for the reason that the best interests of the child should, in relevant contexts, outweigh such individual rights.45 5

Adjudging the Best Interests of the Child in Pre-trial Detention

An overarching principle of the juvenile justice provisions in the crc is the rule that the arrest, detention or imprisonment of children must be considered as a last resort, and if ordered, be limited to the shortest period of time.46 This rule was the first of its kind amongst international human rights instruments.47 For example, the un International Covenant on Civil and Political Rights (iccpr) only provides for a much more general standard prescribing that there should not be a generalised norm in favour of the detention of persons accused of crimes and awaiting trial.48 It does not prescribe the ‘last resort principle’. It has therefore been asserted that the crc standard is much stricter than the 44 [2014] eKLR. 45 As above, Justice Isaac Lenaola, stating, at para 15, that ‘while I would be averse to classifying rights in order of priority, there is no doubt in my mind that between the Petitioner’s inconvenience at being subjected to dna testing and the need to conclusively determine the paternity of the child, in the child’s interest and certainly in the Petitioner’s interest, the child’s interest must prevail. For the Petitioner, it would be a minor inconvenience if he attends to dna testing once but for a child not to know its parents and benefit from their protection and care, the damage may linger for years to come.’ 46 Article 37(b) of the crc provides that ‘arrest, detention or imprisonment of children shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time’. Under article 40(2) of the Convention, States Parties shall ensure that every child ‘alleged as or accused of having infringed the penal law’ has the right ‘to have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law’. The importance of speediness in dealing with alleged child offenders also underlies the provision in article 40(2) for the child’s right to ‘be informed promptly and directly of the charges against him or her’. 47 Van Bueren G The International Law on the Rights of the Child (1995) 210. 48 Article 9(3) iccpr provides in part: ‘It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.’

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standard for pre-trial or other detention of adults prescribed by the iccpr.49 The African Children’s Charter, while making provision for the obligation of states to ensure that ‘every child accused of infringing the penal law shall have the matter determined as speedily as possible’, does not expressly provide for this principle.50 However, by virtue of article 46 of the Charter, which makes reference to the crc as one of the sources of inspiration for the interpretation of the Charter, the principle may be implied by the Charter.51 The import of the principle of detention as a last resort is that alternative measures to arrest and detention must be used at all stages of the juvenile justice process, including the pre-trial detention period. This principle aims to restrict institutionalisation in two regards: in quantity (‘last resort’) and time (‘minimum necessary period’).52 According to international standards of persuasive guidance to states, one of the implications of this rule is that [a]lternatives to arrest such as summons may have to be found. The use of bail also has to be considered. Children or their families are often unable to meet bail, and are deprived of their liberty as a consequence of their poverty, not because of relevant factors in criminal justice.53 The Committee on the Rights of the Child has elucidated that implementing the principle of detention as a last resort and for the shortest period of time is linked to the need for promptness when dealing with alleged child offenders, this in order to avoid keeping them in the justice system any longer than necessary and thereby limit that system’s pedagogical impact on the child as well as the prospect of his or her being stigmatised.54 Regarding time limits for 49 50 51

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Van Bueren G The International Law on the Rights of the Child (1995) 210. Art. 17(2). Art. 46 provides: ‘The [African Committee on the Rights and Welfare of the Child] shall draw inspiration from International Law on Human Rights, particularly from the provisions of the African Charter on Human and Peoples’ Rights, the Charter of the Organization of African Unity, the Universal Declaration on Human Rights, the International Convention on the Rights of the Child, and other instruments adopted by the United Nations and by African countries in the field of human rights and from African values and traditions.’ Commentary to Beijing Rules on the Administration of Juvenile Justice, Rule 19(1). United Nations (1999) The United Nations and Juvenile Justice: A Guide to International Standards and Best Practice 11. One of the ‘relevant factors’ in criminal justice factors ­alluded to here is the gravity or seriousness of the offence. un Committee on the Rights of the Child, General Comment No. 10 on children’s rights in juvenile justice, CRC/C/GC/10, (2007), para. 51.

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conducting trials of alleged child offenders, the Committee recommends that States Parties to the crc set and implement time limits for the period between the commission of the offence and the completion of the police investigation, the decision of the prosecutor (or other competent body) to bring charges against the child, and the final adjudication and decision by the court or other competent judicial body. These time limits should be much shorter than those set for adults. But at the same time, decisions without delay should be the result of a process in which the human rights of the child and legal safeguards are fully respected […]55 The Committee does not make direct calls for time limits for the period of pretrial detention but reiterates the centrality of the principle of detention as a last resort.56 It also recommends that State parties ensure that a child can be released from pretrial detention as soon as possible, and if necessary under certain conditions. Decisions regarding pretrial detention, including its duration, should be made by a competent, independent and impartial authority or a judicial body, and the child should be provided with legal or other appropriate assistance […]57 6

Adjudicating the Best-interests Principle in Kenyan Law

In keeping with the views above of the un Committee, one of the ways of implementing the principle of detention as a last resort and for the shortest period of time is through provisions regarding pre-trial bail and the pre-trial detention of children. Currently the principal legal provision on bail in Kenya is found in article 49 of the new Constitution,58 augmented by a substantive 55 56 57 58

un Committee on the Rights of the Child, General Comment No. 10 on children’s rights in juvenile justice, CRC/C/GC/10, (2007), para. 52. un Committee on the Rights of the Child, General Comment No. 10 on children’s rights in juvenile justice, CRC/C/GC/10, (2007), para. 80. un Committee on the Rights of the Child, General Comment No. 10 on children’s rights in juvenile justice, CRC/C/GC/10, (2007), para. 81. Art. 49(1)(h) of the Constitution provides that ‘[a]n arrested person has the right to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released’. Art. 49(2) provides that ‘[a] person shall not

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Criminal Procedure Code. For children, the Children’s Act provides additionally for a specific set of subsidiary legislation, the Child Offenders Rules,59 which govern the conduct of criminal court proceedings in respect of child offenders. The Rules make explicit provisions for how the police and other criminal justice officials should deal with children accused of having committed crimes. They span across the justice procedural chain, from the time of arrest and formal laying of criminal charges against a child to issues such as the bailing of children, the requirement of the attendance or involvement of the child’s parent or guardian in court proceedings, and the requirement of probation reports for the purposes of determination of issues such as pre-trial detention or probation. What gives the Rules their novelty under Kenyan law is that they provide for time limits in the duration of trials involving children. According to Rule 12: (1) Every case involving a child shall be handled expeditiously and without unnecessary delay. (2) Where the case of a child appearing before a Children’s Court is not completed within 3 months after his plea has been taken the case shall be dismissed and the child shall not be liable to any further proceedings for the same offence. (3) Where, owing to its seriousness, a case is heard by a court superior to the Children’s Court the maximum period of remand for a child shall be six months, after which the child shall be released on bail. (4) Where a case to which paragraph (3) of this rule applies is not completed within twelve months after the plea has been taken the case shall be dismissed and the child shall be discharged and shall not be liable to any further proceedings for the same offence. Rule 10 of the Child Offender Rules makes provision for situations where a child is refused bail, stating that such a child should be kept in custody in a remand home and in such instances custody shall not exceed six months in the case of capital offences or three months in the case of other offences.60

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be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months’. The Rules constitute Schedule 5 of the Act and are promulgated by the Minister in charge pursuant to Section 194(1) of the Act, which provides: ‘Proceedings in respect of a child accused of having infringed any law shall be conducted in accordance with the rules set out in the Fifth Schedule.’ Under Section 194(2) the Minister may by regulations amend the rules made in accordance with subsection (1). Child Offender Rules, Rule 10(4).

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To the extent that Rule 12 imposes time limits on the duration of trials, it sought to give effect to Section  186(c) of the Children’s Act, which provides that ‘every child accused of having infringed any law shall have the matter determined without delay’. A number of earlier court cases, beginning in 2003, seemed intent on upholding these provisions.61 However, in a subsequent set of decisions, the High Court ruled that the Act and the Child Offender Rules do not have the effect of imposing time limits within which to ‘complete trials’ per se, but provide a basis for ensuring an expeditious handling of criminal cases involving alleged child offenders.62 However, a 2006 court decision in Kazungu Mkunzo and another v Republic63 put a halt to this trend. In this decision, Kenya’s highest court at the time, the Court of Appeal, ruled that Rules 10(4) and 12 of the Child Offender Rules (of the Act) were unconstitutional and ultra vires to the Children’s Act itself. The Court reasoned that the Rule purported to set time limits within which to complete the criminal trial of alleged child offenders in a context when Kenya’s Constitution and the Children’s Act did not make corresponding express provisions setting time limits for the completion of trials – whether of children or adults. According to the Court, the setting of such time limits did not comply with Section 186(c) of the Children’s Act itself, which provides that such trials must be determined ‘without delay’, nor with Section 77 of Kenya’s old Constitution, which provided for the right to a fair trial for all persons, including the right to be tried ‘within a reasonable time’. According to the Court this section did not expressly specify time limits for completing criminal trials. 61

For example in R v S.A.O. (a Minor) [2004] eKLR, in which the High Court enforced the provisions by ordering the release on bail, pending trial, of a 13-year-old girl charged with murder. The Court cited the inordinate delay in the start of the trial. In Victor Lumbasi v Republic, Bungoma High Court Criminal Case No. 57 of 2006 (unreported), the High Court held that, irrespective of the nature or seriousness of the criminal charge, including the capital offence of murder, bail should ordinarily be granted to an alleged child offender unless there are militating circumstances. The Court also held that where a child is not released on bail, the court may make an order for his or her detention in a children’s remand home until the case is heard and determined, and that such final determination must be within 12 months from the date of plea. 62 For example in Republic v Matano Katana Mombasa, High Court Criminal Case No. 33 of 2004 (unreported) and Republic v S.T. (a child), Nakuru High Court Criminal Case No. 144 of 2003 (unreported). In both cases the High Court decisions interpreted the purpose of the explicit wording of the Child Offender Rules (Rule 12) to be a safeguard to prevent delays in the completion of criminal cases involving alleged child offenders. 63 [2006] eKLR.

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The Court further examined the provision regarding bail (Section 72) under the provisions of the old Constitution, and noted that any person, child or adult, charged with a capital offence64 was not entitled to a right to bail. Regarding the legality of the Children’s Act and the Child Offender Rules it concluded: The Children’s Act does not set any time limits within which trials must be completed. In any case, even if the Act had made such a provision that would be contrary to Section 77(1) of the Constitution which does not define what ‘a reasonable time’ would be. Again the rules under consideration purport to allow the release on bail of children charged with offences punishable by death. Both the Constitution and the Criminal Procedure Code prohibit that. In the event, we have come to the conclusion that Rules 10(4) and Rule 12(2), (3) and (4) are ultra vires Section 186(c) of the Children’s Act, and are also contrary to Sections 72(5) and 77(1) of the Constitution. Those rules being ultra vires the provisions we have set out, they are null and void and are of no effect […]65 One of the implications of this decision is that for the Child Offender Rules (regarding pre-trial detention/bail and duration of trials involving children) to have withstood legal scrutiny, they should have been passed into law as part of the Act and not as subsidiary legislation to the Act. The legality of such a rule would also have had to involve a constitutional amendment to the general right to a fair trial as was provided in Section 77 of the then applicable Constitution.66 As with the r.m. case, one of the questions is whether a new constitutional legal framework that entrenches children’s rights now places Kenyan courts in a better position to enforce the progressive provisions of the Children’s Act and the Rules, which are premised on a post-CRC legal framework. This is especially so in the light of the provisions of Kenya’s new Constitution which not only provide for the ‘paramount importance’ of the best interests of the 64

65 66

The alleged child offender in this case was charged with the offence of murder, which is a capital offence albeit in respect of which Sections 18(2) and 190(2) of the Children’s Act provide that the death penalty does not apply to children. Section  18(2) provides: ‘Notwithstanding the provisions of any other law, no child shall be subjected to capital punishment or to life imprisonment.’ As per Omolo, RSC, Bosire, SEO and Githinji, EM, JJA, in Kazungu Mkunzo case (fn. 63 above) 6–7. Odongo (fn. 12 above) 130.

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child but also draw directly from the wording of article 37 of the crc in article 53(1)(f)(i), which provides for every child’s right ‘not to be detained, except as a measure of last resort, and when detained, to be held for the shortest period of time’. It is noteworthy that this provision does not distinguish whether the detention is pre-, during, or post-trial. It appears, however, that the High Court’s record since the Constitutional promulgation is replete with examples of non-consideration of the implications of the constitutionalisation of the principle of detention as a last resort and the child rights clause in relation to juvenile justice. In c.j.w. Guardian ad litem for d.w. v Republic (May 2011),67 the High Court made no reference at all to the child rights clause or other relevant provisions of the new Constitution. Here, the Court was asked to consider whether the 12-month pending Children’s Court criminal trial of a 16-year-old boy charged with defilement was in violation of Rule 12(2) of the Child Offender Rules, requiring criminal trials be disposed of within three months of the date of the child taking a plea. Relying on the facts of the case, in particular that the case delay emerged from the defence counsel’s request for adjournments on three separate occasions,68 the Court rejected the application for the dismissal of the case. It appeared to assert that the time limits for the conclusion of trials involving children could not be enforced as a matter of practice due to ‘many challenges’, noting that [t]he trial limit period has been faced with many challenges in various courts. These include non-availability of prompt hearing dates any time the case is adjourned. The other reasons include adjournments which may be occasioned by the prosecution, the defence or even by the court itself for various reasons […]69 The High Court had further occasion to re-examine the legal status of the Child Offender Rules, in particular the rules in favour of granting bail to children accused of crimes or limiting the duration of trial involving children, in relation to the provisions of the new Constitution. In the 2011 case Republic v Nzaro Chai Karisa and 3 others,70 the High Court was faced with a matter involving a 67 [2011] eKLR. 68 [2011] eKLR page 4 of judgment. It is particularly striking that the Court notes that, on two of the three occasions when the child’s counsel requested an adjournment, this was because the ‘prosecution had not provided the defense with witness statements’. 69 [2011] eKLR, per Muchemi, FN, J. 70 [2011] eKLR.

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17-year-old boy, co-accused with three adults of committing murder, who had been held in pre-trial custody for nine months (hence beyond the six-month time limit for the granting of bail in the Child Offender Rules) and who sought to be released on bail pending the trial. Regarding the Child Offender Rules, the Court stated: It must be remembered […] that Article 49(1)(h) and 49(2) of the Constitution remain the key provisions of the law when it comes to issues of bail. A child offender facing a charge of murder will therefore benefit from the provision of Article 49(1)(h) and will be released on bail unless there is compelling reason. On the other hand, where for compelling reasons a child offender has been remanded in custody, the child cannot insist on automatic release after the end of either three months or six months as provided by Rule 10(4) of the Child Offender Rules where those [compelling] reasons persist. In this way there will be instances where the provisions of Rule 10(4) must give way to the provisions of Article 49(1)(h) of The Constitution.71 Relying on the legal procedural principles that would apply to all alleged offenders whether they be children or adults, in particular the principle of considering the offender’s flight risk, the Court made an order granting pre-trial bail to the child in this case. Although the full extent of the legal submissions by counsel for the State and the accused is not clear, the Court does not refer to or distinguish the Court of Appeal’s decision72 that had declared Rules 10(4) and 12 of the Child Offender Rules unconstitutional and ultra vires. In fact, to the extent that this latest High Court decision appears to affirm these Rules as legal and in force, albeit as not legally binding on courts, it seems to contradict the earlier decision of the Court of Appeal to which the High Court should be legally bound. From a child rights perspective, it is anomalous that the Court does not make reference to article 54(1)(f) of the Constitution, which now entrenches the principle of detention as a last resort and for the shortest period of time and thus effectively limits the detention of children both in quantity and time. The explicit inclusion of this principle in Kenya’s new Constitution – set against the backdrop of conflicting court decisions – again highlights situations in which the progressive provisions in international child rights law find expression in domestic legislation seeking to domesticate the crc yet remain 71 72

As per Tuiyott, F.J in Nzaro Chai Karisa case, [2011] eKLR page 2. Kazungu Mkunzo case (fn. 63 above).

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in limbo due to inconsistencies in the domestic legal order.73 A decision by Kenya’s High Court sitting as a Constitutional Court or the higher courts – the Court of Appeal and the Supreme Court – may be required to clarify the applicable legal position with regard to the Child Offender Rules and the enforcement of the principle of detention of children as a last resort and for the shortest period of time, which now finds expression in the child rights clause of Kenya’s Constitution. 7

The Prospects of an Enhanced Role for International Law

With the exception of the r.m. case, none of the court decisions discussed in this chapter engage with the role of international child rights norms or their relevance to either of the twin issues that were the subject of the cases – parental responsibility and the limitations on pre-trial detention in Kenya’s juvenile justice system. In the set of decisions regarding parental responsibility – exhibited in zak and more recent jurisprudence – the inclusion of a child rights clause in the new Constitution, one containing key principles drawn from the crc and other international legal norms, appears understandably to have provided the High Court ultimately with direct provisions on which to base its decisions without reference to the crc or other international law. By contrast, in the set of decisions relating to juvenile justice the Court failed to refer to – and, by extension, reckon with – the implications of the inclusion in the Constitution of principles drawn from the crc and international law, in particular the right of children under article 53(1)(f) not to be detained unless as a last resort and then for the shortest period of time. In r.m. the High Court asserted the argument that, in order to avoid ‘conflict with international law’, Kenyan courts should, in contexts where clear domestic legal provisions exist on an issue, have recourse to treaty provisions to determine the implication of a norm only if the domestic legal provision is 73

It has been submitted previously, in Odongo (fn. 12 above) 131, that, in order to ensure legal consistency in the light of the existing case law and the enabling provisions of the new Constitution (in particular, article 53(1)(f) which provides for the principle), the Kenyan government could ensure that the Rules are made a substantive part of the Act. However, in the face of court decisions that do not amplify the child rights-specific nature of the principle and how it applies to children accused of crimes, it is contestable whether or to what extent Kenyan courts would embrace the applicability or legally binding nature of these Rules in the absence of further explicit constitutional provisions over and above provisions, such as those regarding bail, that apply to adults and children alike.

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­ambiguous. In this sense it is irrelevant if the particular domestic legal provision would vitiate the rights and norms in the given treaty – in r.m. specifically, children’s right to have their best interests given consideration and their right to non-discrimination taken into primary account in the context of parental responsibility for children born out of wedlock. This restricted view of international law is in line with long-held judicial reluctance in Kenya to apply the principles of international law contained in the international human rights instruments which the country has ratified.74 Two authors have correctly termed this judicial stance ‘an extreme dualist approach to the implementation of international law’.75 However, even in the years before the adoption of the new Constitution, the High Court began to embrace the relevance of treaty provisions in its judicial interpretation of the nature and scope of human rights norms.76 Still, the fact that r.m. was decided during this period is testimony to the reluctance of Kenyan courts to apply international legal principles in adjudicating cases. Article 2(6) of the Constitution of Kenya, 2010, now provides that ‘any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution’. This provision has been upheld in several cases, such as the Court of Appeal’s decision in David Njoroge Macharia v Republic,77 in which the court asserted that under the new Constitution, and drawing from the relevant international treaty law (including the iccpr), all criminal defendants accused of capital offences have a right to a lawyer at the state’s expense despite the lack 74

See Open Society Foundations, Kameri-Mbote P & Migai A Kenya: Justice Sector and the Rule of Law (2011) 38. 75 As above, citing the words of the then Chief Justice in the oft-cited case Okunda v Republic (1970) ea 543, to the effect that ‘[t]he provisions of a treaty entered into by the government … do not become part of the municipal law of Kenya, save in so far as they are made such by the Laws of Kenya’. 76 As above, citing examples between 2003 and 2006, including the cases, Rev. Timothy Njoya & 5 Others v The Attorney General, The Constitution of Kenya Review Commission, Kiriro wa Ngugi & Koimita Ole Kina, The Muslim Consultative Council and Chamber of Justice (interested parties) and the Law Society of Kenya (appearing as Amicus Curiae), High Court of Kenya at Nairobi, Miscellaneous Civil Appeal No. 82 of 2004 (in which the Court considered the prohibition of illegal discrimination relying on article 21 of the Universal Declaration of Human Rights and Section 82 of the Kenyan Constitution applicable at the time); in the matter of Andrew Manunzyu Musyoka (Deceased) (2005) eKLR, in which the court held that aspects of customary law on issues of inheritance and succession were inconsistent with the constitution and international human rights law. 77 [2011] eKLR.

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of specific statutory provisions underpinning this right in Kenyan law at the time of the decision.78 Recent academic discussions of these and other cases remark that article 2(6) of the Constitution has been interpreted by the court in such a way as to transform Kenya, traditionally a dualist state (requiring domestication through statute of international law), into a monist one (in which international law is considered as part of municipal law).79 This view would appear incontestable in the light of the express provisions of article 2(6). However, in practice, as evident in the example of the principle of detention of children as a last resort, it remains unclear whether and to what extent Kenyan courts will be ready to apply international legal principles embodied in treaties, such as the crc and the African Children’s Charter, as part of Kenyan law. Thus far the willingness of the High Court to have recourse to international legal jurisprudence in the interpretation of some of the Bill of Rights provisions of the new Constitution – particularly with regard to economic and social rights,80 which are novel to Kenya’s legal order – portends well.81 78

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For an exhaustive analysis, see Wasilczuk MK ‘Substantial injustice: why Kenyan children are entitled to counsel at state expense’ (2012) 45 N.Y.U Journal of International Law and Politics 291–333, pointing out, at 297, that this decision ‘validates’ the High Court’s earlier decision in In re Zipporah Wambui Mathara [2010] eKLR, in which the court stated at para 9 that ‘by virtue of the provisions of Section [sic] 2(6) of the Constitution of Kenya, 2010, International Treaties, and Conventions that Kenya has ratified, are imported as part of the sources of Kenyan Law’. As above, p 297, quoting the decision at para. 15 thus: ‘Kenya is traditionally a dualist system, thus treaty provisions do not have immediate effect in domestic law […] However, this position may have changed after the coming into force of our new Constitution.’ See also Bosire C, Lando V & Kaguongo W ‘The impact of the African Charter and Women’s Protocol in Kenya’ in Booyzen Y The Impact of the African Charter and Women’s Protocol in Selected African States (2012) 65–78, at 66 asserting that ‘[t]he African Charter [on Human and People’s Rights] and the Women’s Protocol [to the African Charter] are now part of Kenyan law under the 2010 Constitution’. Constitution of Kenya, 2010, art. 43. In a series of decisions on economic and social rights, Kenyan courts have relied on comparative jurisprudence and the jurisprudence and interpretative guidance by the African Commission on Human and Peoples’ Rights and the un Committee on Economic, Social and Cultural Rights. However, it is vital that future jurisprudence deals specifically with the legal obligations related to children’s rights, including children’s specific socioeconomic rights. The Constitution, article 53(1) provides that: Every child has the right – (b) to free and compulsory basic education; (c) to basic nutrition, shelter and health care. The qualifications regarding the progressive nature of State obligations and availability of resources in relation to socioeconomic rights under Article 43 of the Constitution are not made with regard to children’s rights under Article 53. Therefore the implication seems to be that the legal obligations regarding children’s socioeconomic rights are of an immediate nature

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8 Conclusion The Kenyan experience of judicial interpretation of children’s rights norms provided for in a relatively progressive new law enacted in a previously child rights-restrictive constitutional order offers an instructive example: in order for ongoing African child law reform processes, based on the crc and other international law, to positively impact the legal status of children’s rights in domestic legal orders, there is need for these processes to be broad and farreaching beyond the drafting of the specific child law. A key lesson is that the judicial interpretation of key children’s norms drawn from treaty law invariably involves the need for courts to examine and engage with the applicability of international law in the domestic legal order. To this end, ascertaining the status of new children’s rights norms and possibly including them in constitutional frameworks is vital. In addition, ensuring a synchrony between children’s rights statutes and constitutions must be a crucial element of the emerging and ongoing child law reform process if the legal guarantee of children’s rights in new laws across Africa is to be effective. Bibliography Books

Heyns C (ed) Human Rights Law in Africa Vol. 2 (2004) The Hague: Martinus Nijhoff. United Nations The United Nations and Juvenile Justice: A Guide to International Standards and Best Practice (1999) New York: United Nations. Van Bueren G The International Law on the Rights of the Child (1995) Dordrecht/ Boston/London: Martinus Nijhoff.



Chapters in Books

Bosire C, Lando V & Kaguongo W ‘The impact of the African Charter and Women’s Protocol in Kenya’ in Booyzen Y The Impact of the African Charter and Women’s Protocol in Selected African States (2012) 65–78 Pretoria: Pretoria University Law Press. Sloth-Nielsen J ‘Domestication of children’s rights in national legal systems in the African context: Progress and prospects’ in Sloth-Nielsen J (ed) (2008) Children’s Rights in Africa: A Legal Perspective Aldershot: Ashgate. in certain respects, and particularly for children without parental or other primary care, such as children in alternative care settings, see Odongo (fn. 12 above) 122. For recent specific discussion of the nature of State obligations for children’s socioeconomic rights, see Nolan A ‘Economic and social rights, budgets and the Convention on the Rights of the Child’ (2013) 21(2) International Journal of Children’s Rights 248–77.

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Wabwile MN ‘Rights brought home? Human rights in Kenya’s Children Act, 2001’ in Bainham A & Rwezaura B (eds) The International Survey of Family Law (2005) 393–415 Bristol: Jordan Publishing.



Journal Articles

Nolan A ‘Economic and social rights, budgets and the Convention on the Rights of the Child’ (2013) 21(2) International Journal of Children’s Rights 248–77. Odongo GO ‘The domestication of international standards on the rights of the child: A critical and comparative evaluation of the Kenyan example’ (2004) 12(4) International Journal of Children’s Rights 419–30. Odongo G ‘Caught between progress, stagnation and a reversal of some gains: Reflections on Kenya’s record in implementing children’s rights norms’ (2012) 12 African Human Rights Law Journal 117–18. Ongoya EZ ‘The emerging jurisprudence on the provisions of Act No. 8 of 2001, Laws of Kenya – the Children’s Act’ (2007) 1 Kenya Law Review 221–24. Skelton A ‘The development of a fledgling child rights jurisprudence in Eastern and Southern Africa based on international and regional instruments’ (2008) African Human Rights Law Journal. Wasilczuk MK ‘Substantial injustice: Why Kenyan children are entitled to counsel at state expense’ (2012) 45 N.Y.U Journal of International Law and Politics 291–333.

Reports

Redress Torture in Africa:The Law and Practice: Regional Conference Report(2012), available at http://www.redress.org/downloads/publications/Africa%20regional%20report %20FINAL%208%20OCT%202012.pdf (accessed 8 March 2014).

Miscellaneous

African Child Policy Forum ‘Realizing their rights: Harmonization of law for children in Eastern and Southern Africa’ (2007). Kameri-Mbote P & Migai A Kenya: Justice Sector and the Rule of Law (2011) Johannesburg: Open Society Initiative for Eastern Africa. Kirby M ‘The road from Bangalore: The first ten years of the Bangalore Principles on the domestic application of international human rights norms’, speech available at http://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/ kirbyj_bang11.htm#FOOTNOTE_1 (accessed 1 April 2014). UN Committee on the Rights of the Child, Concluding Observations on Kenya’s second periodic report, 19 June 2007, CRC/C/KEN/CO/2. UN Committee on the Rights of the Child, General Comment No. 10 on children’s rights in Juvenile Justice (2007) CRC/C/GC/10.

chapter 12

The Best Interests of the Child: A Guiding Principle in Administering Cross-Border Child-Related Matters? Mirela Župan Abstract This chapter points out the ways in which the legal standard of the best interests of the child affected the system of cross-border judicial protection of a child. Nowadays best interest of the child operates as a declaratory overriding principle, but boils down to the level of choice-of-law rules, the level of criteria of international jurisdiction, and as a basic interpretive principle in cross-border child-related matters. It is noticeable that this principle is not of equal importance in all child-related matters. Thus some sectors, such as child abduction, have been particularly elaborated in the chapter. The chapter discusses the Hague Conference on Private International Law convention system as well as relevant eu regulations. It is argued that the best interests of the child principle was significantly advanced by the introduction of a new methodology of adjudication in cross-border child-related issues, which entails more flexibility and requires sensitivity to the needs and interests of children in each case. Implementing the best-interests principle allows a more holistic approach to decisions relating to children in cross-border protection and involves the proactive power of interpretation of the adjudicatory authority.

1 Introduction It is well known that the principle of the best interests of the child was established as a legal standard on the international scene in 1989 by article 3 of the un Convention on the Rights of the Child (crc).1 The creators of the Convention had reasons to believe in its global impact; however, the way in which this legal standard achieved its interdisciplinary effect on child protection systems has certainly surpassed many expectations. This chapter focuses on the way in which the legal principle of the best interests of the child has infiltrated private international law and international 1 Trevor B International Child Law (2014) 137 et seq.

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procedural law which is applied to solve cross-border (international) disputes regarding the rights and the interests of children. In addition to article 3, the crc itself stressed specific areas where special attention should be paid to the protection of the best interests of the child. In this respect, a number of provisions are particularly significant for resolving cross-border cases.2 Despite these guidelines,3 the effects of the crc standards relating to the best interests of the child now extend far beyond the crc itself.4 This chapter deals primarily with the ways to implement the principle of the best interests of the child in the conventions adopted by the Hague Conference on Private International Law (hcch) and the regulations adopted by the eu in the field of judicial cooperation in family matters. As the crc set a substantive standard with implications for other legal disciplines, the realisation of the principle of the best interests of the child in court proceedings is particularly emphasised, especially those related to parental care and parental child abduction. The most intriguing questions in cross-border cases seem to be those concerning the interpretation of the best interests of the child related to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.5 Furthermore, it is an interesting fact that nowadays the best interest of the child has a significant role in those legal areas where there is a complete lack of legal regulation at the international level, such as genetically assisted procreation or surrogate motherhood. Ultimately, the effects of the crc and its standard on the best interests of the child on interpretation of matters of cross-border child protection are farreaching. In order to adequately analyse the cross-border position of the best interests of the child we shall follow the tenets of General Comment No. 14 of the un Committee on the Rights of the Child,6 which provides this legal standard with a triple function: it is the standard of substantive law, the fundamental interpretive principle of law and the procedural principle. The chapter 2 Bucher A L’enfant en droit international privé (2000) 4–5. 3 The following provisions are important in cross-border child protection: articles 9, 10, 12, 18, 20 and 21. 4 Schuz R ʻInfluence of the crc on Hague Conventionʼ (2010) 11(3) Journal of Family, Law and Practice 48. 5 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, Hague Conference on Private International Law (1993) (hereinafter ‘the Adoption Convention’). 6 un Committee on the Rights of the Child, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken a s a primary consideration (art. 3, para. 1), 29 May 2013, CRC/C/GC/14, (hereinafter ‘un Committee on the Rights of the Child General Comment No. 14’) para. 6.

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first deals with the declaratory incidence of the best interests of the child in cross-border legislation, then presents its effects on specific areas of law, and goes on to consider questions of interpretation by way of immediate application in individual cases. 2

The Child’s Best Interests in Areas of Cross-border Protection

The best interest of the child has affected all areas of cross-border protection of children. In some areas it occurs as a general guideline for the adoption of legislation, in some it becomes more substantially part of the legislative act, while in others it serves as a guide to interpretation. Occurrence of the Best Interests of the Child in Cross-border Legislation 2.1.1 The Hague Conference on Private International Law Although the involvement of the Hague Conference on Private International Law in cross-border child protection goes back far into the past,7 the impact of this international organisation is nowadays generally recognised.8 Although it could be assumed that the best-interests standard would have an impact on legislation established after the adoption of the crc, there are counterexamples as well. The International Child Abduction Convention, which predated the crc, gives an indication of this standard in its opening lines.9 The introduction of a legal standard of the best interests of the child extends through the conventions the hcch adopted after the 1990s. In this regard, the Adoption Convention of 1993 brought the best interests of the child to the 2.1

7 Even in its early conventions, the hcch provided a legal framework for children in crossborder cases (for example, the Guardianship Convention of 1902); this practice continued with conventions adopted after World War ii and their modernised versions adopted in the 1970s. For more information, see http://www.hcch.com. 8 ‘The Committee encourages the ratification and implementation of the conventions of the Hague Conference on Private International Law, which facilitate the application of the child’s best interests and provide guarantees for its implementation in the event that the parents live in different countries.’ un Committee on the Rights of the Child, General Comment No. 14; Elrod LD ʻNational and international momentum builds for more child focus in relocation disputesʼ (2010) 44(3) Family Law Quarterly 346. 9 ‘Firmly convinced that the interests of children are of paramount importance in matters relating to their Custody’ Convention on the Civil Aspects of International Child Abduction (1980) (hereinafter ‘Child Abduction Convention’).

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fore as the leading principle and the purpose of adopting the Convention.10 A similar pattern was repeated in the case of the preamble of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children of 1996,11 and was extended in the case of the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance of 2007.12 However, the principle of the best interests of the child entered the system of private international law much more substantially by its transformation into the system of provisions contained in relevant Hague conventions. The principle of the best interests of the child was first integrated into the system of choice-of-law rules in the Adoption Convention, where it became one of the conditions for adopting a child, on several levels.13 The approval of adoption is assessed here at the discretion of the court or the central authority of 10

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‘The objects of the present Convention are – a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law; […]’ Art. 1 of the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, 29 May 1993; United Nations Declaration of Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, g.a. Res. 41/85, u.n. gaor., 41st Session, Supp. No. 53, at 265, u.n. Doc. 41/85 (1986) in its Art. iv (b) requires that the country of origin determine that international adoption is in the best interest of the child. ‘confirming that the best interests of the child are to be a primary consideration’. Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, Hague Conference on Private International Law (1996) (hereinafter ‘the Child Protection Convention’). ‘Recalling that, in accordance with Articles 3 and 27 of the United Nations Convention on the Rights of the Child of 20 November 1989, − in all actions concerning children the best interests of the child shall be a primary consideration’ Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, Hague Conference on Private International Law (2007) (hereinafter ‘the Maintenance Convention’). ‘An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin – […] b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests (Art. 4); […] shall determine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child (Art. 16); Where the adoption is to take place after the transfer of the child to the receiving State and it appears to the Central Authority of that State that the continued placement of the child with the prospective adoptive parents is not in the child’s best interests, such Central Authority shall take the measures necessary to protect the child’ Art. 21(1).

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the child’s best interest.14 In the Child Protection Convention of 1996, it was brought into effect in the function of both the conflict of law and procedural law. Specifically, as a new criterion for international jurisdiction, transfer of jurisdiction was made dependent on the assessment of the competent authorities regarding the best interests of the child; it is almost the same with merging a parental care lawsuit with the existing divorce procedure.15 Furthermore, the principle of the best interests of the child is, as a standard, associated with the system of the implementation of decisions on cross-border situations involving children. For instance, the Child Protection Convention was a step away from the established methods of ‘recognition and declaration of enforceability’; although it is clear that national enforcement law applies to enforcement itself, the Convention stipulates that in the enforcement procedure particular attention must be paid to the best interests of the child.16 What remains questionable is the legal significance of such a rule, that is, whether it is a demand for harmonisation of national enforcement law or an open standard for the national implementation authorities. The convention system later accepted the best interests of the child as an assessment standard in cross-border placement in an institution or in a foster family.17 The influence of the best interests of the child on the system of crossborder protection of children is even greater. Specifically, the best interests of a child are becoming the standard for measuring opposition to national public policy when it comes to child-related decisions. Conventions provide for the refusal of the application of foreign law, that is, the refusal to recognise a foreign decision, ‘if it were contrary to public policy, in particular taking into account the best interests of the child’.18 In the field of international adoption, it was implied in the early 1990s that adoption by same-sex couples could trigger this exemption.19 After the European Court of Human Rights (ECtHR) ruling in X and Others v Austria,20 such an argument would no longer suffice on the European territory. In addition to the aforementioned nominal incidence, the impact of the best interests of the child on the status of children in cross-border cases is 14 15 16 17 18 19 20

Bjorge C ‘Intercountry adoptions: In the best interests of the child?ʼ (2002) 2(2) qutljj 278. Arts. 8 and 10. Art. 28. Art. 33(1)(2). Art. 24 Adoption Convention; art. 22 and art. 23(2)d Child Protection Convention. Parra-Aranguren G Explanatory Report on the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993) 14. ECtHR judgement in the case of X and Others v Austria (application 19010/07) of 19 February 2013.

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much more far-reaching. It tackles a number of issues, but greater importance has been attached to some traditional relations between parents and children. In terms of the illegal movement of a child, the best interests standard has had an exciting epilogue. Had the Child Abduction Convention post-dated the crc, it might have been drafted differently. At any rate, while it is predicated on the idea that children’s interests are generally best served in cases of the wrongful removal or retention by their prompt return to their state of prior habitual residence, it contains what is perceived as a fundamental flaw that naturally points to article 3 of the crc. In its article 11, the crc requires states to prevent the wrongful removal or retention of a child, while article 9(3) acknowledges the child’s right to maintain contact with both parents – in the context of parents living abroad, it has to be read in conjunction with article 10(2). The best way to prevent international child abduction from occurring is to ensure that it is not rewarded. In particular, forum shopping should be discouraged. Abducted children should be returned promptly to their country of residence, where the courts are best positioned to determine the child’s best interests and issue a judgment on the case. However, there is an exception to this measure of prompt return. The Child Abduction Convention tries to strike a balance between the interests of children in general not to be wrongfully taken from their habitual residence and the need to protect individual children.21 But in the decades of implementing this Convention the result has been that the individual child’s best interest has taken second place due to a narrow and rigid interpretation of article 13, the ‘grave risk of harm’ exception.22 The ECtHR influenced the relationship between this general best interest and individual best interest of the child, as its Neulinger ruling23 opened its assessment in each case. The Neulinger judgment questioned the relationship of fundamental rights of one group in relation to another (the ECtHR subordinated article 13(b) of the Child Abduction Convention to article 8 of the echr),24 but also the interpretation of the best interests of the child standard as a ­collective feasible principle versus the best interests of the child in a particular 21 22 23 24

Beaumont P & McEleavy P The Hague Convention on International Child Abduction (1999) 31. Schuz R The Hague Child Abduction Convention (2014) 355. ECtHR judgement in the case of Neulinger and Shuruk v Switzerland (Application No 41615/07) of 6 July 2010. Trombetta-Panigadi F ʻThe European Court of Human Rights and the best interest of the child in the recent case law on international child abduction’ in Boschiero N et al. (eds) International Courts and the Development of International Law (2013) 599 et seq.

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case. The ECtHR recommended that the best interests of the child are to be considered in each individual case. This differed from the philosophy on which the Convention operates to protect the best interests of children in general and to assist them in maintaining relationships with both parents. Here the conflict arises between the substantive human rights issues dealt with by the court and the strict rules contained in the Convention. The court can be perceived as encouraging national courts to look into the merits of the case by requiring them to make an in-depth assessment of the child’s best interests. The ECtHR ruled on the matter, slightly altering its standing in the case of Šneersone and Kampanella v Italy.25 Recently in the case of x v Latviathe ECtHR returned to its pre-Neulinger position, with the unanimous Grand Chamber view that the best interests of a child in the context of Child Abduction convention is upheld in the mere return mechanism. National courts are not encouraged to assessment of whether the return of a child is in its best interest, but merely to apply properly the exceptions to return, as prescribed by article 12, 13 and 20 of the Convention.26,27 2.1.2 The European Acquis As the influence of the eu acquis in the area of international family law was found to be only sporadic, with numerous challenges to its legal basis and justification, all in the context of ‘judicial cooperation in civil matters’, the best interest of the child was completely ignored in the post-Amsterdam phase of law harmonisation.28 The Stockholm Programme29 introduced child protection 25 26 27

28

29

ECtHR judgement in the case of Šneersone and Kampanella v Italy (Application No 14737/09) of 12 October 2011. Beaumont P et al. ‘Child abduction: Recent jurispruidence of the European Court of Human Rights’ 64 International and Comparative Law Quarterly (2015) 62. ECtHR judgement in the case of X v Latvia (Application No 27853/09) of 26 November 2013. Walker L & Beaumont P ‘Post Neulinger case law of the European Court of Human Rights on the Hague Child Abduction Convention’ in The Permanent Bureau of the Hague Conference on Private International Law (ed) A Commitment to Private International Law: Essays in Honour of Hans van Loon (2013) 17–30; Vajić N ʻThe interaction between the European Court of Human Rights and the Hague Child Abduction Conventionʼ in Župan M (ed) Private International Law in the Jurisprudence of European Courts: Family at Focus (2015) 283. See Tampere European Council 15–16 October 1999 presidency conclusions for 1999–2003 as well as the Hague Programme: strengthening freedom, security and justice in the European Union for the period 2004–2009. Point 2.3.2 of the Stockholm Programme – an open and secure Europe serving and protecting citizens, 2010/C 115/01.

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as one of the eu priorities. New vertical eu policy is embodied in article 24 of the Charter of Fundamental Rights.30 At eu level, the best interest of the child is exercised through the new mechanisms of surveillance and monitoring; the eurochild report indicates flawed practices as cases of disrespect for the rights of children have been recorded.31 Systematic monitoring of the impact of all policies on the position of a child is fully exercised by the instruction of the un Committee on the Rights of the Child that the term ‘all actions’ shall imply that the best interest of the child should be the guiding principle in relation to general law and policy-making. This can also be demonstrated in the area of illegal transboundary movements of children that result in a claim for asylum. To ensure uniform practice,32 the new Asylum Procedures Directive33 sets clear criteria regarding the facts that must be taken into account when assessing the best interests of the child. If we focus on the eu regulations governing children-related cross-border issues, only Regulation 2201/200334 reflects the best interests of the child in terms of the overriding principle. Recital 12 declares that the rules on jurisdiction in matters of parental care are ‘shaped in the light of the best interests of the child, in particular on the criterion of proximity’. It also confirms that, in principle, the court most competent for making decisions about children in cross-border cases is the one of the Member State of the child’s habitual residence, with some reasonable exceptions. With the Brussels ii bis Regulation the best interest of the child is further significantly positioned through the rules on international jurisdiction. This is true for prorogation of jurisdiction regardless of a marital dispute, when 30

31

32 33

34

Saastamoinen S ʻThe European Private International Law and the Charter of Fundamental Rightsʼ in A Commitment to Private International Law: Essays in Honour of Hans van Loon (2013) 507. com (2014) 224 final, 2013 Report on the Application of the eu Charter of Fundamental Rights, and swd (2014) 141 final – Commission Staff Working Document accompanying the Report, Part 1/2 and Part 2/2. O’Donnell R ʻThe role of the eu legal and policy framework in strengthening child friendly justiceʼ (2013) 14 era Forum 514. Council Regulation (ec) No 604/2013 of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or stateless person (recast), oj eu, L 180/31, 29.6.2013. Council Regulation (ec) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (ec) No 1347/2000, Official Journal L 338, 23/12/2003 P. 0001– 0029. (hereinafter ‘the Brussels ii bis’).

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e­ lective jurisdiction is conferred to the courts of a Member State that the child is closely related to (as evidenced by the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State), but only if the prorogation of jurisdiction is in the child’s best interests.35 Furthermore, the Brussels ii bis Regulation lays down the criterion of the best interest of the child when assessing the justification of a transfer of jurisdiction36 according to article 15, similar to the Child Protection Convention. The apparent opposition to the public policy may be used to refuse recognition of the decision of another Member State only if the best interest of the child was taken into consideration.37 The eu Court of Justice has to date issued 12 parental care-related rulings under the Brussels ii bis Regulation, and only one does not mention the best interests of the child.38 As illustrated by this eu Court of Justice practice,39 different concepts of the discipline of private international law are interpreted in accordance with the best interests of the child. For example, the question of the child’s habitual residence has been the subject of a number of decisions of the eu Court of Justice; systematically from the first decision in 200940 to more recent ones,41 the assessment in a particular case is managed to suit the best interests of the child. However, the Povse judgement42 indicates that in eu Court practice some other principles may be placed on a higher ­footing than 35 36 37 38 39 40

41 42

Art. 12(3)3. Art. 15(1), art. 15(5). Art. 23. Case C-435/06 of 27 November 2007. Lenaerts K ʻThe best interests of the child always come first: The Brussels ii Bis Regulation and the European Court of Justiceʼ (2013) 20(4) Jurisprudence 1302–28. ‘Since Article 8(1) of the Regulation does not make any express reference to the law of the Member States for the purpose of determining the meaning and scope of the concept of “habitual residence”, that determination must be made in the light of the context of the provisions and the objective of the Regulation, in particular that which is apparent from Recital 12 in the preamble, according to which the grounds of jurisdiction which it establishes are shaped in the light of the best interests of the child, in particular on the criterion of proximity.’ Case C-523/07, para 35. Case C-376/14 ppu of 9 October 2014, para. 56; Case C‑656/13 of 12 November 2014, paras. 48, 49, 58. ‘4. Enforcement of a certified judgment cannot be refused in the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change must be pleaded before the court which has jurisdiction in the Member State of origin, which should also hear any application to suspend enforcement of its judgment.’ Case C-211/10 ppu Povse v Alpago [2010] ecr I-6673.

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the best interests of the child.43 On the other hand, Regulation No. 4/200944 does not mention the best interests of the child as being among its leading principles. Such an attitude is also adopted by the eu Court of Justice, as illustrated by a recent case in which the court missed the opportunity to strengthen its argumentation on German rules on concentration of jurisdiction by taking into account the best interests of the child standard.45 2.1.3

The Best Interests of the Child as a Guiding Interpretive Principle: Beyond the Traditional Parent–Child Relationship A child-related dispute, particularly an alternative dispute resolution in child abduction cases, is another topic of interest here. In fact, as early as in 1987, the European Parliament created the Mediator for International Parental Child Abduction, where the role of the mediator is to try to find a voluntary agreement between the abducting parent and the other parent, with the best interests of their child(ren) always being paramount.46 Mediation in cross-border child abduction was the cornerstone of hcch recent activities as well,47 where mediation is guided by the best interests of the child.48 During certification of the agreement resulting from mediation the court can check whether it is in the best interests of the child.49 If we examine the trend of the last decade of intensified cross-border family mediation,50 particularly in cross-border abduction of children, it is evident that the tendency is to provide a holistic approach to the child, which is also the priority from the perspective of the Committee on the Rights of the Child.51

43

44

45 46 47 48 49 50 51

Lazić V ʻLegal framework for international child abduction in the European Union: The need for changes in the light of Povse v Austria’ in Župan M (ed) Private International Law in the Jurisprudence of European Courts: Family at Focus (2015) 295–316. Council Regulation (ec) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, Official Journal L 7/1 10.1.2009. Joined cases C‑400/13 and C‑408/13 of 18 December 2014. Kucinski MA ʻThe pitfalls and possibilities of using technology in mediating cross-border child custody casesʼ (2010) 2 Journal of Dispute Resolution 300. The Hague Conference on Private International Law Guide to Good Practice Child Abduction Convention: Mediation (2012). Şistac ZD et al. Best Practice Guide on the Use of Mediation in Cross-Border Cases (2013) 19. Kucinski MA ʻThe pitfalls and possibilities of using technology in mediating cross-border child custody casesʼ (2010) 2 Journal of Dispute Resolution 311. Paul CC & Kiesewetter S Cross-Border Family Mediation 2 ed (2014). ‘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,

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In the contemporary globalised world people move more easily across borders than before, but their culture, traditions and religious rights52 are not always in the spirit of contemporary protection of the best interests of the child. Religious constraints on children’s rights are recorded in a number of areas where forced child marriages are the norm.53 Such cases raise various issues relating to the violation of fundamental human rights and the impossibility of such marriages being recognised in other states (eventually through reduced public order activity). This situation results in so-called limping marriages.54 The problem belongs to the wider discourse of culture and religion in cross-border situations related to children, in which the conflict of fundamental human rights, children’s rights, and religious rights and freedoms is clearly expressed in the context of private international law.55 A related issue in this context is the controversial practice of circumcising Muslim children.56 It is worth mentioning a few more legal areas in which the rights and interests of children and adults are at odds with each other. The most prominent examples are the areas of genetically assisted procreation and surrogate motherhood. In the field of genetically assisted procreation, two decades ago the question of child’s interests was of secondary importance.57 Today, such an approach has been abandoned with the adoption of the so-called ‘childcentric’ model. However, there is no doubt that such an approach impinges on the reproductive choice and rights of adults involved in the process. ‘Past and current practices have the potential to cause significant and lifelong harm to the offspring through loss of kinship, heritage, identity, and family health

52

53 54 55

56 57

­ sychological, moral and spiritual integrity of a child and to promote his or her human p dignity’. un Committee on the Rights of the Child, General Comment No. 14, 4 para 5. Gephart W ʻFamily law as a cultureʼ in Boele-Woelki K, Dethloff N & Gephart W (eds) Family Law and Culture in Europe: Developments, Challenges and Opportunities (2014) 347 et seq. Sabbe A et al. ʻForced marriage: An analysis of legislation and political measures in Europeʼ (2014) 62 Crime Law Soc Change 172. Sommer E Der Einfluss der Freizügigkeit auf Namen und Status von Unionsbürgern (2009) 44. Van Loon H ʻThe accommodation of religious laws in cross-border situations: The contribution of the Hague Conference on Private International Lawʼ (2010) 2(1) Cuadernos de Derecho Transnacional 261–7. Jänterä-Jareborg M ‘Cross-border family cases and religious diversity: What can judges do?’ (2013) Religare Working Paper 10. Annas GJ ʻFathers anonymous: Beyond the best interests of the sperm donorʼ (1981) 60(3) Child Welfare 161–74.

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history, and possibly through introducing physical problems.’58 It is here that the child’s right to know his or her origin, which is arguably in his or her best interest, conflicts with the rights and interests of adults.59 Furthermore, today the problem of the best interests of the child is particularly apparent in the context of surrogate motherhood.60 Persons who cannot achieve their parenting goal in their own country go to states in which surrogate motherhood is at least a grey area, and enter into international agreements on surrogate motherhood. In this area, the legal practice of the ECtHR proactively interpreted the best interests of the child,61 although it left some gaps and open questions.62 The best interests of the child are also used in arguments linked to the relationship between parents and children in lgbt communities.63 Conclusion The aim of this chapter has been to point out the ways in which the legal standard of the best interests of the child affected the system of cross-border judicial protection of a child. It operates as a declaratory overriding principle, but boils down to the level of choice-of-law rules, the level of criteria of international jurisdiction, and as a basic interpretive principle in cross-border childrelated matters. It is noticeable that this principle is not of equal importance in all child-related matters. Both at the level of the hcch and the eu, it is strongly embodied in the provisions of instruments relating to parental responsibility issues. However, none of the instruments relating to child maintenance takes account of it at the level of provision, but merely as a recital guiding principle. 58

59 60 61 62 63

Adams DH ʻConceptualising a child-centric paradigm: Do we have freedom of choice in donor conception reproduction?ʼ (2013) 10 Bioethical Inquiry 369–81; Turkmendag I ʻThe donor-conceived child’s “right to personal identity”: The public debate on donor anonymity in the United Kingdomʼ (2012) 39(1) Journal of Law and Society 58–75. Cowden M ʻNo harm, no foul: A child’s right to know their genetic parentsʼ (2012) 26(1) International Journal of Law, Policy and the Family 102–26. Trimmings K & Beaumont P (eds) International Surrogacy Arrangements: Legal Regulation at the International Level (2013) 1–5. ECtHR judgement in the cases of Mennesson v France (Application No. 65192/11) and Labassee v France (No. 65941/11) of 26 June 2014. Bala N ‘The hidden costs of the European Court of Human Rights’ surrogacy decision’ (2014) 40 The Yale Journal of International Law Online 16. Falletti E ʻlgbt discrimination and parent–child relationships: Cross-border mobility of rainbow families in the European Unionʼ (2014) 52(1) Family Court 28–45.

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The intensity of the influence of the best interests of the child principle in cross-border disputes is particularly interesting from the doctrinal point of view. In cross-border legal documents we have witnessed the transformation of fundamental principles in multiple functions into the system of international private and procedural law. Arguably the best example is the principle of the closest connection. This principle, dating fromSavigny, became the ratio of the entire private international law system of choice-of-law rules, as well as trigger for the mechanism of their exclusion by clause d’Exception.64 The principle of best interests of the child today reminds one of the ‘closest connection’. It is a fundamental referral principle when it comes to children in cross-border situations, it is in principle referred to by legislation, transformed into the choice-of-law rule connection, and sometimes enables a deflection from the mechanically determined connection if it is in the best interest of the child. In both cases, it is about the so-called ‘rudimentary choice-of-law rule connection or framework criterion’ which is interpreted by the competent authority in each case. According to Guggenheim, ‘The best interests standard necessarily invites the judge to rely on his or her own values and biases to decide the case in whatever way the judge thinks best. Even the most basic factors are left for the judge to figure out.’65 It should be noted that the best interests of the child principle was significantly advanced by the introduction of a new methodology of adjudication in cross-border child-related issues. It introduced into the continental European legislation and practice non-mechanical standards aiming at providing flexibility to the system and sensitivity to the needs and the interests of children. This requires competent authorities to act proactively, and it points to the holistic approach in which not only judges but psychologists and other professionals will be crucial in making decisions relating to children. In this regard, this criterion is open to the realisation of justice in every case, but in the case of unified legislation there is a risk of uneven practice as a result of misinterpretation, manipulation or, simply, mistakes. The interpretation raises many questions, as can be seen in the literature by contentious decisions of the ECtHR and the eu Court of Justice.66 In some sectors the practice has moved 64

65 66

De Boer TM Forty Years On: The Evolution of Post-War Private International Law in Europe (1990); Kokkini-Iatridou D Les Clauses d’Exception en matiere de Conflicts des Lois et de Conflicts de Juridictions: ou le principe de proximite (1994). Guggenheim M What’s Wrong with Children’s Rights (2005) 40. Walker L & Beaumont P ʻShifting the balance achieved by the Abduction Convention: The contrasting approaches of the European Court of Human Rights and the European Court of Justiceʼ (2011) 7(2) Journal of Private International Law 231–49.

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forward rapidly. An outstanding example is the case of Wagner decided by the ECtHR. The Court stated that it is contrary to the best interests of the child to refuse to recognise the decision on adoption which is valid in the country of adoption. Moreover, according to the Court, the state in which such adoption (single-parent in that case) would not be possible is in breach of article 8 of the echr.67 Although this might suggest that the Court was opening the door to the market of ‘European family law products’, the case failed to produce such effects.68 The effects of the crc and its best interests of the child standard on interpretation is the most valuable aspect of the modern system of cross-border judicial protection of children. It appears to be effective especially in those areas where the law lags behind social changes and there is often no adequate regulation either on the international or national level. Thus, in the field of surrogate motherhood, the best interests of the child emerged as one of the main arguments for initiating the legislative project on the possible Convention.69 It can be concluded that this principle, which is implemented into the systems of cross-border protection of children, implies the contemporary significance of practice and the proactive power of interpretation. Bibliography Books

Beaumont P & McEleavy P The Hague Convention on International Child Abduction (1999) Oxford: Oxford University Press. Bucher A L’enfant en droit international privé (2000) Basel: Helbing Lichtenhahn. De Boer TM Forty Years On: The Evolution of Post-War Private International Law in Europe (1990) Deventer: Kluwer. 67

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‘Reiterating that the child’s best interests had to take precedence in cases of that kind, the Court considered that the Luxembourg courts could not reasonably disregard the legal status which had been created on a valid basis in Peru and which corresponded to family life within the meaning of Article 8. Accordingly, the Court held that there had been a violation of Article 8.’ ECtHR judgement in the case of Wagner and jmwl v Luxembourg, Application No. 76240/01, of 28 June 2007. Rienk Kiestra L The Impact of the European Convention on Human Rights on Private International Law (2014) 224. Permanent Bureau hcch A Preliminary Report on the Issues Arising from International Surrogacy Arrangements (2012) Prel. Doc. No 10 4; Boele-Woelki K ʻ(Cross-border) surrogate motherhood: We need to take action now!ʼ in The Permanent Bureau of the Hague Conference on Private International Law (ed) A Commitment to Private International Law: Essays in Honour of Hans van Loon (2013) 58.

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Guggenheim M What’s Wrong with Children’s Rights (2005) Cambridge: Harvard University Press. Kokkini-Iatridou D Les Clauses d’Exception en matiere de Conflicts des Lois et de Conflicts de Juridictions: ou le principe de proximite (1994) Dordrecht/Boston/London: Martinus Nijhoff. Paul CC & Kiesewetter S Cross-Border Family Mediation 2 ed (2014) Frankfurt: Wolfgang Metzner Verlag. Rienk Kiestra L The Impact of the European Convention on Human Rights on Private International Law (2014) T.M.C. Asser Press, Springer. Schuz R The Hague Child Abduction Convention (2014) Hart Publishing. Şistac ZD, Walker J, Ignat C, Ciuca AE & Lungu SE Best Practice Guide on the Use of Mediation in Cross-Border Cases (2013) Bucharest. Sommer E Der Einfluss der Freizügigkeit auf Namen und Status von Unionsbürgern (2009) Sellier European Law Publishers. Trimmings K & Beaumont P (eds) International Surrogacy Arrangements: Legal Regulation at the International Level (2013) Hart Publishing.



Chapters in Books

Boele-Woelki K ʻ(Cross-border) surrogate motherhood: We need to take action now!ʼ in The Permanent Bureau of the Hague Conference on Private International Law (ed) A Commitment to Private International Law: Essays in Honour of Hans van Loon (2013) 47–59 Cambridge: Intersentia. Gephart W ʻFamily law as a cultureʼ in Boele-Woelki K, Dethloff N & Gephart W (eds) Family Law and Culture in Europe: Developments, Challenges and Opportunities (2013) 347–358 Cambridge: Intersentia. Lazić V ʻLegal framework for International Child Abduction in the European Union: The need for changes in the light of Povse v Austriaʼ in Župan M (ed) Private International Law in the Jurisprudence of European Courts: Family at Focus (2015) 293–316 Osijek: Faculty of Law Josip Juraj Strossmayer University of Osijek, available at http://www.pravos.unios.hr/knjiznica/fakultetska-izdanja-25-04-2016 (accessed 26 November 2015). Saastamoinen S ʻThe European Private International Law and the Charter of Fundamental Rightsʼ in The Permanent Bureau of the Hague Conference on Private International Law (ed) A Commitment to Private International Law: Essays in Honour of Hans van Loon (2013) 503–15 Cambridge: Intersentia. Trombetta-Panigadi F ʻThe European Court of Human Rights and the best interest of the child in the recent case law on International Child Abductionʼ in Boschiero N et al (eds) International Courts and the Development of International Law (2013) 599–614 The Hague: T.M.C. Asser Press. Vajić N ʻThe interaction between the European Court of Human Rights and the Hague Child Abduction Conventionʼ in Župan M (ed) Private International Law

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in the Jurisprudence of European Courts: Family at Focus (2015) 285–93 Osijek: Faculty of Law Josip Juraj Strossmayer University of Osijek, available at http://www. pravos.unios.hr/knjiznica/fakultetska-izdanja-25-04-2016 (accessed 26 November 2015). Walker L & Beaumont P ʻPost Neulinger case law of the European Court of Human Rights on the Hague Child Abduction Conventionʼ in The Permanent Bureau of the Hague Conference on Private International Law (ed) A Commitment to Private International Law: Essays in Honour of Hans van Loon (2013) 17–30 Cambridge: Intersentia.

Articles

Adams DH ʻConceptualising a child-centric paradigm: Do we have freedom of choice in donor conception reproduction?ʼ (2013) 10 Bioethical Inquiry 369–81. Annas GJ ʻFathers anonymous: Beyond the best interests of the sperm donorʼ (1981) 60(3) Child Welfare 161–74. Bala N ʻThe hidden costs of the European Court of Human Rights’ surrogacy decisionʼ (2014) 40 The Yale Journal of International Law Online 11–19. Beaumont P et al. ‘Child abduction: Recent jurispruidence of the European Court of Human Rights’ 64 International and Comparative Law Quarterly (2015) 39–63. Bjorge C ‘Intercountry adoptions: In the best interests of the child?’ (2002) 2(2) QUTLJJ 278. Cowden M ʻNo harm, no foul: A child’s right to know their genetic parentsʼ (2012) 26(1) International Journal of Law, Policy and the Family 102–26. Falletti E ʻLGBT discrimination and parent–child relationships: Cross-border mobility of rainbow families in the European Unionʼ (2014) 52(1) Family Court 28–45. Kucinski MA ʻThe pitfalls and possibilities of using technology in mediating crossborder child custody casesʼ (2010) Journal of Dispute Resolution 297–325. Lenaerts K ʻThe best interests of the child always come first: The Brussels II Bis Regulation and the European Court of Justiceʼ (2013) 20(4) Jurisprudence 1302–28. O’Donnell R ʻThe role of the EU legal and policy framework in strengthening child friendly justiceʼ (2013) 14 ERA Forum 507–21. Sabbe A, Temmerman M, Brems E & Leye E ʻForced marriage: An analysis of legislation and political measures in Europeʼ (2014) 62 Crime Law Soc Change 171–89. Turkmendag I ʻThe donor-conceived child’s “right to personal identity”: The public debate on donor anonymity in the United Kingdomʼ (2012) 39(1) Journal of Law and Society 58–75. Van Loon H ʻThe accommodation of religious laws in cross-border situations: The contribution of the Hague Conference on Private International Lawʼ (2010) 2(1) Cuadernos de Derecho Transnacional 261–7.

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Walker L & Beaumont P ʻShifting the balance achieved by the Abduction Convention: The contrasting approaches of the European Court of Human Rights and the ­European Court of Justiceʼ (2011) 7(2) Journal of Private International Law 231–49.



Working Papers

Jänterä-Jareborg M ʻCross-border family cases and religious diversity: What can judges do?ʼ (2013) Religare Working Paper 10.

Reports

2013 Report on the Application of the EU Charter of Fundamental Rights, and SWD (2014) 141 final – Commission Staff Working Document accompanying the Report, Part 1/2 and Part 2/2. COM (2014) 224 final. Parra-Aranguren G Explanatory Report on the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993) The Hague: Hague Conference on Private International Law. Permanent Bureau HCCH A Preliminary Report on the Issues Arising from International Surrogacy Arrangements (2012) The Hague: Prel. Doc. No 10 Hague Conference on Private International Law. The Hague Conference on Private International Law Guide to Good Practice Child Abduction Convention: Mediation (2012), available at http://www.hcch.net/upload/ guide28mediation_en.pdf (accessed 23 November 2015).



General Comments

UN Committee on the Rights of the Child, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC /C/GC/14.

chapter 13

The European Court of Human Rights’ Jurisprudence Regarding the Segregation of Roma Schoolchildren: A Children’s Rights Perspective Zsuzsanna Nyitray Abstract Racial segregation of Roma children in the educational setting is an especially egregious kind of discrimination for it targets not only an ethnic minority but the most vulnerable group of society: children. This double vulnerability puts Roma children at an increased risk of becoming victims of human rights violations. However, not till its ground-breaking ruling in the case of d.h. and Others v the Czech Republic in 2007 did the European Court of Human Rights (ECtHR) finally condemn the practice of segregating Roma schoolchildren. This chapter provides a child rights-sensitive examination of four pivotal cases decided between 2007 and 2013. It seeks to analyse whether the ECtHR’s judgments are consistent with international child rights standards as set out in the crc. By using key child rights principles and standards as a critical lens for interpreting these segregation cases, I explore whether the ECtHR embraces a child rights-compliant vision of the prohibition of discrimination in education.

1 Introduction Racial segregation of Roma children in the educational setting is an especially egregious kind of discrimination for it targets not only an ethnic minority but the most vulnerable group of society: children. This double vulnerability puts Roma children at an increased risk of becoming victims of human rights violations.1 However, not till its ground-breaking ruling in the case of d.h. and Others v the Czech Republic2 in 2007 did the European Court of Human Rights (ECtHR or Court) finally condemn the practice of segregating Roma schoolchildren. This chapter provides a children’s rights-sensitive examination of

1 See Besson S ‘The principle of non-discrimination in the Convention on the Rights of the Child’ (2005) 13 International Journal of Children’s Rights 443. 2 d.h. and Others v the Czech Republic [gc], Application no. 57325/00 (13 November 2007).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_014

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four pivotal cases decided between 2007 and 2013.3 It seeks to analyse whether the ECtHR’s judgments are consistent with international children’s rights standards as set out in the un Convention on the Rights of the Child (crc).4 By using key children’s rights principles and standards as a critical lens for interpreting these segregation cases, I explore whether the ECtHR embraces a child rights-compliant vision of the prohibition of discrimination in education. The chapter relies on the primary sources of the four ECtHR rulings under examination and consults relevant un materials5 in this field. Section 2 sets out the content of the relevant children’s rights standards in the context of non-discrimination and education and describes the child rights-compliant approach. Following a brief introduction to the facts of the cases in Section 3, Section 4 provides a critical analysis of the ECtHR’s thinking and reasoning in the cases in question and explores whether it reflects the children’s rights standards that are identified under Section 2. The chapter concludes with some final remarks. 2

Relevant Children’s Rights Standards and the Use of a Child Rightscompliant Approach

2.1 A Child Rights-compliant Approach Surprisingly, an analysis of the ECtHR’s Roma segregation case law from the perspective of children’s rights law has been absent to date from the academic literature. The present chapter seeks to fill this gap by providing a children’s rights-sensitive examination of the relevant ECtHR jurisprudence. Employing a children’s rights perspective means analysing whether the ECtHR’s judgments are consistent with international children’s rights standards under the crc as set out in Section 2.2 below. By ‘consistency’ I mean whether or not the ECtHR’s understanding of the substantive content of the right to education and the right not to be discriminated against in the context of the segregation 3 These cases are the following: d.h. and Others v the Czech Republic [gc], Application no. 57325/00 (13 November 2007); Sampanis and Others v Greece, Application no. 32526/05 (5 June 2008); Oršuš and Others v Croatia [gc], Application no. 15766/03 (16 March 2010); Horváth and Kiss v Hungary, Application no. 11146/11 (29 January 2013). 4 The crc was adopted unanimously by General Assembly Resolution 25/44 of November 20, 1989 and entered into force less than a year later on 2 September 1990. 5 These are the un Committee on the Rights of the Child’s General Comment No. 1 on the aims of education, and the un Committee on Economic Social and Cultural Rights’ General Comment No. 11 and 13.

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cases echoes the crc’s and the Committee on the Rights of the Child’s6 interpretation of these rights. One way of unrevealing whether children’s rights – and in particular articles 28 and 29 of the crc – have had an impact on the ECtHR’s rulings is to search for explicit references to crc articles in the text of the judgments. The ECtHR often refers directly to particular articles or general principles of various legal instruments and treaties of regional and international human rights law as a ‘source of law’ influencing its thinking. Alternatively, indirect reliance on the crc might be found when the ECtHR interprets the substantive content of a broadly or vaguely described echr right, in this case the right to education under article 2 Protocol 1 of the echr, and uses other international treaty provisions as its interpretation tool. Section 4 of this chapter explores the ways in which the ECtHR has referenced or relied on the content of crc provisions in the course of assessing the Roma segregation cases. 2.2 The Relevant crc Standards The crc’s most relevant provisions in the educational setting are article 28 on the right to access to education7 and article 29(1) on the aims of education,8 6 The Committee on the Rights of the Child is the body of 18 independent experts that monitors implementation of the crc by its States Parties. The Committee also publishes its interpretation of the content of human rights provisions, known as general comments on thematic issues. The Committee’s most relevant general comment in the area of education is General Comment No. 1 (2001) on the aims of education. 7 According to article 28(1) of the Convention, ‘States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall […]’ ensure that children receive an education through, inter alia, ‘making primary education compulsory and available free to all’ and by ‘encouraging the development of different forms of secondary education available and accessible to every child’, and so forth. 8 Art. 29(1) of the Convention reads as follows: States Parties agree that the education of the child shall be directed to: (a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the natural environment.

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complemented by articles 2, 3, 6 and 12 – most commonly referred to as ‘the general principles’9 of the crc. As highlighted by the crc in its General Comment No. 1,10 while article 28 focuses upon the obligations of States Parties in relation to the establishment of educational systems and in ensuring access to them, article 29(1) underlines the individual and subjective right to a specific quality of education.11 Article 29(1) is of far-reaching importance as the aims articulated therein promote, support and protect the core value of the crc12 and recognise that the content of education is just as important an aspect of the child’s right to education as access. A crucial dimension of article 29(1) – as emphasised by the crc – is the message of realising a child-centred education that empowers children for life. The overall objective of education is therefore to maximise the child’s ability and opportunity to participate fully and responsibly in a free society.13 In order to achieve this goal, the curriculum must be of direct relevance to the child’s social, cultural, environmental and economic context and take account of the child’s evolving capacities.14 States Parties often seem to ignore that the child’s capacity to participate fully can be impaired or undermined not only by the outright denial of access to education (as provided for in article 28) but also by a failure to promote understanding of the values recognised under article 29(1).15 The effective promotion of article 29(1) and the right to receive an education of good quality requires states to fundamentally rework the curricula and to create a school environment that reflects the spirit and educational philosophy of the crc and the aims laid down in article 29(1).16 The general non-discrimination clause under article 2 of the crc obliges States Parties to assure the realisation of all rights to every child without 9

10

11 12 13 14 15 16

The general principles of the Convention shall be taken into account in relation to the realisation of all rights guaranteed within the Convention. They are: non-discrimination (art. 2), the best interests of the child (art. 3), right to life and the highest attainable standard of health, survival and development (art. 6); the right to express views and have them taken into account of the child (art. 12). The fact that the child’s right to education was the first issue the Committee embraced highlights its pivotal position and significance in the realisation and implementation of children’s rights law. crc General Comment No. 1 (2001) on the aims of education, CRC/GC/2001/1, para. 9. crc General Comment No. 1, paras. 1–2. crc General Comment No. 1, para. 12–13. crc General Comment No. 1, para. 9. crc General Comment No. 1, para. 14. crc General Comment No. 1, para. 18, 22.

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­discrimination of any kind,17 and article 28 of the crc guarantees access to education on the basis of equal opportunity. As highlighted by the crc, discrimination on the basis of any of the protected grounds, whether overt or tacit, offends the human dignity of the child and is capable of undermining or even destroying the child’s capacity to benefit from educational opportunities.18 While denying a child’s access to educational opportunities is a breach of article 28, there are many ways in which failure to comply with the principles of article 29(1) can lead to similar effects.19 For instance, discrimination of the Roma can be reinforced by practices such as a curriculum which is inconsistent with the principles of racial equality and respect for different cultural practices, by arrangements which limit the benefits Roma can obtain from the educational opportunities offered, and by unsafe or unfriendly environments which discourage Roma participation. Therefore, the provision of education which promotes an understanding and appreciation of the values reflected under article 29(1), including respect for differences, is one (if not the most) crucial tool in combatting racism and is capable of challenging all aspects of discrimination and prejudice.20 In other words, a State Party’s failure to comply with the principles and objectives of education under article 29(1) can in itself have a discriminatory effect.21 Furthermore, the obligation of non-discrimination under articles 2, 28 and 29 of the crc requires States Parties to give special attention to disadvantaged and vulnerable groups and to eradicate all measures and practices that cause or help to perpetuate discrimination. In some circumstances this requires the adoption of temporary special measures in accordance with the best-interests principle.22 In Section 4 I assess whether or not the above standards are reflected by the ECtHR’s rulings. 17

Article 2 of the crc reads as follows: 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. 18 crc General Comment No. 1 (2001) on ‘the aims of education’ (CRC/GC/2001/1), para. 10. 19 crc General Comment No. 1, para. 10. 20 crc General Comment No. 1, para. 11. 21 See crc General Comment No. 1, para. 10. 22 See the Hodgkin R & Newell P Implementation Handbook for the Convention on the Rights of the Child 3 ed (2007) 17–35; cescr General Comment No. 11, para. 32.

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Introducing the Cases

3.1 d.h. and Others v the Czech Republic [gc]23 This case – commonly referred to as the Ostrava case – was brought before the Court by 18 Roma students from the Ostrava region in the Czech Republic in 2000. The applicants, after undergoing certain psychological and pedagogical assessment tests, were assigned to special schools designed for children with mental disabilities unable to attend mainstream schools. They argued that a two-tier educational system was in place in which the segregation of Roma children into such schools where they received inferior education was quasiautomatic and based on their racial or ethnic identity rather than their real abilities. They claimed this practice amounted to a violation of their right to non-discrimination in conjunction with their right to education under article 14 (right to non-discrimination) and article 2 of Protocol 1 (hereinafter ‘article 2P1’ – the right to education) of the European Convention on Human Rights (echr). The applicants relied on statistics and research that showed that Roma pupils in Ostrava were more than 27 times more likely to be placed in special schools than non-Roma pupils. The Grand Chamber of the ECtHR found that the psychological tests in use for the children’s assessment were not adapted to the particularities and special characteristics of the Roma children who sat them. It concluded that the law at that time had a disproportionately prejudicial effect on Roma children without an objective and reasonable justification, and therefore found the Czech Republic liable for racial discrimination of Roma in education under the echr. 3.2 Sampanis and Others v Greece24 In this case 11 Greek nationals of Roma origin living in a residential site near Aspropyrgos complained before the Court that they were denied enrolment to a regular primary school for the academic year 2004–2005 and, on the ground of their ethnic origin, were subsequently placed in segregated special preparatory classes in a school annex in violation of the echr. The Greek authorities argued that the applicants’ enrolment was denied on the basis that they lacked the requisite administrative documents, and that their placement in the annex of the school in the following year served to prepare them for reintegration into the mainstream classes.

23 24

d.h. and Others v the Czech Republic [gc], Application no. 57325/00 (13 November 2007). Sampanis and Others v Greece, Application no. 32526/05 (5 June 2008).

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The Court noted that the special classes were attended exclusively by Roma pupils and that the authorities had failed to provide evidence that any suitable tests – either to assess their capacities and potential learning difficulties prior to their assignment to the special classes or to monitor their progress and reintegration into mainstream classes following their placements – were ever performed. It therefore concluded that both the enrolment procedure and the placement of the children into special classes resulted in racial discrimination of the Roma in education, in violation of article 2P1 and article 14 of the echr. 3.3 Oršuš and Others v Croatia [gc]25 The Oršuš case, brought before the ECtHR in 2003, involved 15 Croatian children of Roma origin, attending mainstream primary schools in three different Croatian villages, who were placed either on enrolment or at a later stage in separate Roma-only classes on the basis of their allegedly poor command of the Croatian language. The applicants argued that this method lacked a clear and specific legal basis and in reality stemmed from blatant discrimination on account of their race or ethnic origin rather than having been designed to improve their language skills. As a result, they were provided with a sub-standard curriculum taught in the separate classes only, which amounted to the denial of the enjoyment of their right to education without discrimination. The Court found that the Croatian Government failed to provide evidence that such practice had been applied in respect of any other pupils with insufficient Croatian language skills in any other part of the country. It further noted that there was no established programme for addressing the special needs of Roma children with insufficient command of Croatian and ensuring a speedy process for their acquisition of the necessary language skills. The Grand Chamber of the ECtHR concluded that this practice constituted racial discrimination of the Roma in education in violation of article 14 in conjunction with article 2P1 of the echr. 3.4 Horváth and Kiss v Hungary26 This case was brought before the Court by two young Hungarian men of Roma origin in 2011 complaining that they were misdiagnosed and wrongly placed in a remedial school designed for the mentally disabled, where they were constrained to follow a limited curriculum. They argued that their placement in the remedial school was a result of an outdated and culturally biased diagnostic assessment system uniquely burdening the Roma and putting them at 25 26

Case of Oršuš and Others v Croatia [gc], Application no. 15766/03 (16 March 2010). Case of Horváth and Kiss v Hungary, Application no. 11146/11 (29 January 2013).

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a particular disadvantage, which amounted to racial discrimination in the enjoyment of their right to education. The Court noted that the figures submitted by the parties demonstrating that Roma children had been overrepresented in remedial schools in the past due to the systemic misdiagnosis of mental disability revealed a dominant trend. As a result of this practice, the applicants had been isolated and received an education which made their integration into society at large difficult. The Court underlined that there was a long history of wrongful placement of Roma children in special schools in Hungary and that the state was obliged to change this practice. It ruled in favour of the applicants and found that the Hungarian special education system, even if superficially neutral, discriminated against the Roma applicants and therefore violated article 14 taken in conjunction with article 2P1 of the echr. The Court also noted that the state had a positive obligation to avoid the perpetuation of past discrimination in education with continuing effects on members of a group that suffered such discrimination. 4

Critical Analysis of the Relevant Strasbourg Cases

4.1 Is There Any Direct Reference to crc Provisions in the Judgements? In the d.h., Oršuš and Horváth cases, under the heading ‘Relevant United Nations Materials’,27 the Court makes an express reference to crc article 28, the right to access to education, and article 30, the right of children from minority or indigenous groups to enjoy their culture, practise their religion and use their language together with other members of their group.28 However, in the Sampanis case, it refers only to Council of Europe sources and does not mention the crc at all.29 Although resorting to articles 28 and 30, there is no reference to article 29, which defines the objectives and content of the right to education and therefore breathes life into the right to education guaranteed under article 28. 27 See d.h. and Others v the Czech Republic [gc] (App. No. 57325/00), under V.E. para. 100; Oršuš and Others v Croatia [gc], (App. No. 15766/03), under V.C. para. 95; Horváth and Kiss v Hungary (App. No. 11146/11), under III. B. para. 76 referring to the above provisions of the above two cases. 28 Article 30 of the crc reads: ‘In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.’ 29 See Sampanis and Others v Greece (App. No. 32526/05), under II. B. paras. 37–48.

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This omission is interesting, as a state can hardly speak of having complied with its education-related obligations under the crc without meeting the requirements embedded in this provision. Notwithstanding the Court’s direct reference to articles 28 and 30 of the crc, it does not comment on their significance any further. Does this mean that although the Court took issue with the specific provisions of the crc in seeking out the relevant law in the context of the cases, it did not rely on their substantive content in its reasoning? The question therefore remains whether there are detectable traces in the Court’s language in denouncing the racial discrimination of Roma in education that seem to have been informed by the crc’s educational provisions. This necessarily leads one to a closer examination of the ECtHR’s reasoning in the four Roma segregation cases below. In Pursuit of Indirect Reliance on the Standards of the crc in the Assessment of the Roma Segregation Cases In all four cases under examination, the applicants argued that they had suffered racial discrimination in the enjoyment of their right to education in breach of article 2 of Protocol 1 and article 14 of the echr. Therefore the ECtHR examined the alleged practices against the requirements of those two provisions. The first sentence of article 2P130 – ‘no person shall be denied the right to education’ – contains a prohibition against discrimination in itself31 and has been understood by the Court at the very least as guaranteeing a right of equal access to existing educational institutions.32 As the exploration of the scope of this article has been limited,33 the examined four Roma segregation cases provided a great opportunity for the ECtHR to potentially expand or ‘upgrade’ the interpretation of article 2P1. Whether the ECtHR has achieved this in concert with the relevant crc articles is discussed below.

4.2

30

31 32 33

Article 2 of Protocol No. 1 reads as follows: ‘No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.’ See Koch IE ‘The right to education for Roma children under the European Convention on Human Rights’ 5. See ‘Case relating to certain aspects of the laws on the use of languages in education in Belgium’. (Belgian Linguistic Case), Judgment of 23 July, 1968, at B. 3 and 4. Reid KA Practitioner’s Guide to the European Convention on Human Rights 4 ed (2011) 384; White rca & Ovey C The European Convention on Human Rights 5 ed (2010) 506.

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Article 14 of the echr34 is a ‘subordinate and non-autonomous clause’,35 which means that it does not guarantee a right per se but has effect solely in relation to the enjoyment of the rights and freedoms granted by the Convention and its protocols.36 Therefore, it cannot be invoked directly (that is, in isolation) by individuals.37 It imposes a duty on States Parties acting within the scope of the echr rights not to discriminate on the suspect grounds, unless differential treatment can be justified.38 One of the major weaknesses of its application before the d.h. case39 was the failure to develop an understanding of discrimination that goes beyond clear-cut, formal, overt and direct cases of discrimination.40 However, as we will see below, since the d.h. case the ECtHR understands article 14 to include protection against indirect discriminatory practices as well. In all four cases, the ECtHR saw the issue put before it as raising primarily a discrimination (and not an education) issue and consequently found it unnecessary to delve into an in-depth assessment of the right to education on its own.41 Nevertheless, in examining whether there had been an inequality of treatment in the enjoyment of the right to education under the echr, the Court was obliged to consider the content of this substantive provision, 34

Article 14 reads as follows: ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ 35 Besson S ‘The principle of non-discrimination in the Convention on the Rights of the Child’ (2005) 13 International Journal of Children’s Rights 442. 36 Danisi C ‘How far can the European Court of Human Rights go in the fight against discrimination? Defining new standards in its non-discrimination jurisprudence’ (2011) 9(3/4) International Journal of Constitutional Law 794. 37 However, another provision, namely article 1 of Protocol 12 echr, guarantees equality before the law and equal protection of the law in itself, not merely in the context of a Convention right, and therefore may be invoked alone. 38 O’Connell R ‘Cinderella comes to the ball: Art. 14 and the right to non-discrimination in the echr’ (2009) 29(2) Legal Studies 211. 39 Despite the fact that Council Directive 2000/43/EC of 29 June 2000 (Race Equality ­Directive) had introduced the concept of indirect discrimination to eu law and therefore made it possible for individuals to sue their state in the European Court of Justice for nonimplementation of the directive, before the ground-breaking judgment in the case of d.h. and Others v the Czech Republic in 2007, the Court avoided adopting the notion of indirect discrimination. 40 O’Connell R ‘Cinderella comes to the ball: Art. 14 and the right to non-discrimination in the echr’ (2009) 29(2) Legal Studies 212–13. 41 See Oršuš and Others v Croatia para. 143–4.

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which necessarily shifted its interpretation to some extent. The next few sections scrutinise the Court’s interpretation of the right to education and nondiscrimination in each case to determine whether it reflects the standards of the crc. 4.2.1

The Court’s Assessment of the Right to Education and the Right to Non-discrimination in the d.h. Case Under the heading ‘The Court’s assessment’ in the d.h. and Others case, the ECtHR throughout remains silent on article 2P1;42 the only paragraph in which this article appears in is the concluding paragraph.43 However, in the course of applying the principle of non-discrimination the Court noted that the disadvantaged and vulnerable position of the Roma in society requires special protection extending to the sphere of education and flagged that ‘the right to education was of paramount importance’ for the applicants as they were minor children.44 It is interesting that although the Court recognised the right to education as being of paramount importance to the applicants, it did not further unfold the content of this right. Later, in examining whether the placement of the applicants into special schools for the mentally disabled had an objective and reasonable justification, the Court noted that because the diagnostic tests that provided the basis for placement did not take into account the ‘particularities and special characteristics of the Roma children who sat them’, there was a danger that they were biased.45 The Court also noted that due to the limited curriculum followed in the special schools, the applicants ‘received an education which compounded their difficulties and compromised their subsequent personal development instead of tackling their real problems or helping them to integrate into the ordinary schools and develop the skills that would facilitate life among the majority population’.46 This articulation, particularly the Court’s reference to the role of education in the personal development of children, reflects the objectives of education as enshrined in article 29 of the crc and suggests the ECtHR’s acceptance of the standard that the arrangement of education must take into account the cultural and societal context of the child. In assessing whether the applicants’ placement in the special schools stemmed from racial prejudice rather than an objective and reasonable

42 See d.h. and Others v the Czech Republic paras. 175–210. 43 d.h. and Others v the Czech Republic para. 210. 44 d.h. and Others v the Czech Republic para. 182 (emphasis added). 45 d.h. and Others v the Czech Republic para. 201. 46 d.h. and Others v the Czech Republic para. 207 (emphasis added).

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­justification, the ECtHR emphasised that ‘the vulnerable position of Roma’ requires States Parties to give ‘special consideration to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases’.47 The Court further highlighted that ‘the schooling arrangements for Roma children’ must be ‘attended by safeguards that will ensure […] the State took into account their special needs as a disadvantaged class’.48 As the diagnostic tests and their results – the basis on which the applicants were channelled into special education – were not analysed in the light of the special characteristics of the Roma children who sat them, the practice of placing them in special schools did not constitute an objective and reasonable justification for the purposes of article 14.49 The recognition by the Court that States Parties must pay special attention to the vulnerability of ethnic minority children, and further, that statutory provisions ‘despite being couched in neutral terms’ can result in indirect discriminatory practices and therefore are prohibited under article 14,50 is consistent with the children’s right standards of the crc. 4.2.2

The Court’s Assessment of the Right to Education and the Right to Non-discrimination in the Sampanis Case In the Sampanis case, the ECtHR considered article 2P1 under the heading ‘General Principles’ as follows: Article 2 Protocol 1 implies a right for the State to establish compulsory schooling, be it in state schools or private tuition of a satisfactory standard, and that verification and enforcement of educational standards is an integral part of the right.51

It further underlined ‘the importance of the education of children in primary schools, not only for the acquisition of knowledge, but also for the integration of children into the whole of society’.52 It also stressed that the enrolment of schoolaged children belonging to a minority group ‘is of particular importance’ in compulsory education53 and that authorities have a duty to pay particular 47 48 49 50 51 52 53

d.h. and Others v the Czech Republic para. 181. d.h. and Others v the Czech Republic para. 207. d.h. and Others v the Czech Republic paras. 197–201. d.h. and Others v the Czech Republic para. 193. Sampanis and Others v Greece, at para. 66 (emphasis added). Sampanis and Others v Greece para. 66 (emphasis added). Sampanis and Others v Greece para. 66.

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­attention to the needs of a vulnerable community such as the Roma and to facilitate the enrolment of their children, even in the lack of the requisite administrative documents.54 Although the Court does not say it explicitly, it can be deduced from this finding that enrolment would have been in the best interests of the applicant children. It is somewhat unfortunate that although the Court recognised that the verification and enforcement of educational standards are an integral part of the right to education, it did not identify these standards. It is also unclear why the Court is reluctant to expressly refer to the crc and its relevant General Comments. Nonetheless, in none of the other judgments does the Court express it so clearly that the integration of children into the whole of society is a crucial objective of education – an observation that truly reflects the standards of the crc. Regarding the denial of the enrolment of the applicants in primary school, the Court stressed that article 14 requires states to correct inequalities stemming from the vulnerable position of the Roma community, which means that the competent authorities need to recognise this vulnerability and facilitate Roma enrolment.55 The Court also found that the authorities had failed to conduct any assessment of the abilities of the Roma children at the time they assigned them to a physically separate school building.56 In this context the Court stressed the importance of introducing a suitable system for assessing the capacities and monitoring the progress of children with learning needs, especially in the case of children from ethnic minorities, to avoid their placement in special classes on the basis of discriminatory criteria. The Court’s above findings can be considered to be in compliance with the standards of the crc. 4.2.3

The Court’s Assessment of the Right to Education and the Right to Non-discrimination in the Oršuš Case In the Oršuš case the ECtHR notes that the right to education under article 2P1 guarantees ‘a right of access to educational institutions existing at a given time’, and for this right ‘to be effective […] it is further necessary that, inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received’.57 This progressive interpretation of article 2P1, which recognises that the content/quality of education is decisive in effecting the right to access, becomes even more apparent from the Court’s

54 Sampanis and Others v Greece para. 86. 55 Sampanis and Others v. Greece para. 86. 56 Sampanis and Others v Greece paras. 90–1. 57 See Oršuš and Others v Croatia para. 146. See also Chamber judgment of 17 July 2008, ­paras. 57–8.

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e­ xamination of the justifications for the applicants’ placement into Roma-only classes. In this context the Court highlighted that if the state claims that the insufficient knowledge of a language was the basis for the differential treatment of the Roma, it is ‘obliged to take appropriate positive measures to assist the applicants in acquiring the necessary language skills in the shortest time possible […] so that they could be quickly integrated into mixed classes’.58 By explicitly recognising the state’s obligation to take positive steps to ensure that the curriculum is specifically designed to address the needs of Roma children transferred to separate classes, the Court broadens the scope of the right to education and brings it closer to the standards of article 29(1) of the crc. The Court’s reasoning above also takes account of an essential feature of the right to education, that is, that every child has the right to receive an education of good quality, although it omits to use this exact term. Furthermore, in examining whether the measure of placing the applicant children in separate classes on the basis of their inadequate command of the Croatian language had an objective and reasonable justification, the Court stressed that in order to avoid discrimination, the state must ‘put in place effective safeguards at each stage of the implementation’59 of such measures to ensure it took into consideration the special needs of a disadvantaged group.60 It further highlighted that states are under the obligation to take appropriate positive measures to assist the applicants’ speedy progress in learning the language and their subsequent integration into mixed classes.61 As the tests applied for the placement of the applicants were not specifically designed to assess their knowledge of the language62 and the curriculum provided in the Roma-only classes was not specifically designed to address the applicants’ alleged linguistic insufficiencies,63 their differential treatment constituted a violation of article 14. The Court’s conclusion is consistent with children’s rights standards as it stresses that the adoption of temporary special measures cannot lead to the maintenance of separate standards for different groups and that it is the state’s duty to avoid the occurrence of even unintended discriminatory effects in this regard.

58 59 60 61 62 63

Oršuš and Others v Croatia para. 165 (emphasis added). Oršuš and Others v Croatia paras. 153, 155–7. Oršuš and Others v Croatia para. 182. (emphasis added). Oršuš and Others v Croatia para. 145 and 165 (emphasis added). Oršuš and Others v Croatia paras. 158–62. Oršuš and Others v Croatia paras. 163–71.

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4.2.4

The Court’s Assessment of the Right to Education and the Right to Non-discrimination in the Horváth and Kiss Case In the case of Horváth and Kiss the ECtHR was once again called upon to examine whether the state was liable for the racial discrimination of the Roma applicants in education under the echr. In examining the scope of article 2P1 the Court did not consider what the actual guarantee of the right to education required, but highlighted that the word ‘respect’ in the second sentence of the article – which deals with the state’s obligation to respect the right of parents to ensure the education of their children is in conformity with their own convictions – ‘implied some positive obligation on the part of the State’.64 In the next paragraph it powerfully stated that ‘in the context of the right to education of members of groups which suffered past discrimination in education with continuing effects, structural deficiencies call for the implementation of positive measures in order, inter alia, to assist the applicants with any difficulties they encountered in following the school curriculum’.65 It added that where there is a history of discrimination against ethnic minority children ‘the State has specific positive obligations to avoid the perpetuation of past discrimination or discriminatory practices disguised in allegedly neutral tests’.66 The Court also reemphasised its conclusions made in the context of its earlier Roma judgments, according to which states are under a duty to take into account ‘the particularities and special characteristics of the Roma children’67 when evaluating their abilities through diagnostic procedures. It reiterated that states must also ensure the schooling arrangements for Roma children are properly safeguarded and are sensitive to their special needs,68 and highlighted that the curriculum provided for Roma children outside mainstream classes must ‘help them to integrate into the ordinary schools and develop the skills that would facilitate life among the majority population’ and advance their development.69 The ECtHR concluded that since there was no adequate protection in place safeguarding the applicants’ proper placement, the diagnostic tests could not serve as a sufficient justification for the impugned treatment.70 In summary, the Court’s strong articulation of states’ duties in relation to providing a non-discriminatory education to Roma children follows the relevant international children’s rights standards of the crc. 64 65 66 67 68 69 70

See case of Horváth and Kiss v Hungary para. 103. Horváth and Kiss v Hungary para. 104 (emphasis added). Horváth and Kiss v Hungary at para. 116. Horváth and Kiss v Hungary para. 121. Horváth and Kiss v Hungary para. 127. Horváth and Kiss v Hungary para. 127. Horváth and Kiss v Hungary para. 123.

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5 Conclusion Although it might not be obvious at first glance, the above analysed decisions of the ECtHR reveal a symbiosis between the universally operational crc and the regional reach of the echr. The recognition that indirect discrimination resulting from laws and practices perpetuating exclusion is prohibited under article 14 is welcome, as it finally brings the ECtHR’s jurisprudence into line with international (children’s rights) standards. Furthermore, the recognition that States Parties are under the duty to provide an education that is effective by meeting the special needs of different children (including children belonging to disadvantaged groups), is sensitive to differences in their abilities, and respects their evolving capacities, is a crucial expansion of the ECtHR’s understanding of the scope of article 2P1 and is a big step towards the full appreciation of crc standards. Finally, the Court’s finding that practices of racial discrimination are likely to undermine or destroy the applicant Roma children’s capacity to benefit from educational opportunities is fully in line with the crc. However, the Court’s lack of express reference to article 29 of the crc is surprising. Since the right to education guaranteed under article 28 is meaningful only if it complies with the objectives listed under article 29, it is difficult to come to grips with the Court’s reluctance to refer to it. I believe that more dynamic and demonstrative references to the provisions of the crc would only further States Parties’ awareness of their duties in relation to the protection and promotion of children’s rights under both Conventions, and therefore would contribute to strengthening the position of Roma children in Europe. That being said, the ECtHR’s jurisprudence by and large reflects the standards of the crc and adds to the protection available for children under the echr in the field of educational segregation, even in the absence of meaningful explicit references to the text of the crc. Bibliography Books

Hodgkin R & Newell P Implementation Handbook for the Convention on the Rights of the Child 3 ed (2007) Geneva: UNICEF, available at http://www.unicef.org/publications/ index_43110.html (accessed 10 January 2015). Reid KA Practitioner’s Guide to the European Convention on Human Rights 4 ed (2011) Sweet & Maxwell. White RCA & Ovey C The European Convention on Human Rights 5 ed (2010) Oxford: Oxford University Press.

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Journal Articles



ECtHR Cases



United Nations Materials

Besson S ‘The principle of non-discrimination in the Convention on the Rights of the Child’ (2005) 13 International Journal of Children’s Rights 433–61. Danisi C ‘How far can the European Court of Human Rights go in the fight against discrimination? Defining new standards in its non-discrimination jurisprudence’ (2011) 9(3/4) International Journal of Constitutional Law 793–807. Kilkelly U ‘The best of both worlds for children’s rights? Interpreting the European Convention on Human Rights in the light of the UN Convention on the Rights of the Child’ (2001) 23(2) Human Rights Quarterly 308–26. Kilkelly U ‘Protecting children’s rights under the ECHR: The role of positive obligations’ (2010) 61(3) Northern Ireland Legal Quarterly 245–61. Koch IE ‘The right to education for Roma children under the European Convention on Human Rights’, available at http://academos.ro/sites/default/files/biblio-docs/240/ right_to_education_for_roma_-_koch.pdf (accessed 14 August 2014). O’Connell R ‘Cinderella comes to the ball: Art. 14 and the right to non-discrimination in the ECHR’ (2009) 29(2) Legal Studies 211–29.

D.H. and Others v the Czech Republic [GC], Application no. 57325/00 (13 November 2007). Sampanis and Others v Greece, Application no. 32526/05, (5 June 2008). Horváth and Kiss v Hungary, Application no. 11146/11 (29 January 2013). Oršuš and Others v Croatia [GC], Application no. 15766/03 (16 March 2010).

CESCR General Comment No. 11 (1999) on plans of action for primary education, E/C.12/1999/4, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G99/ 422/76/PDF/G9942276.pdf?OpenElement (accessed 15 January 2015). CESCR General Comment No. 13 (1999) on the right to education (Art.13), E/C.12/1999/10, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G99/462/16/PDF/G99 46216.pdf?OpenElement (accessed 10 January 2015). 1989 Convention on the Rights of the Child, General Assembly Resolution 25/44 of November 20. CRC General Comment No. 1 (2001) on the aims of education, CRC/GC/2001/1, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G01/412/53/PDF/G0141253 .pdf?OpenElement (accessed 10 January 2015).

chapter 14

The Main Challenges of Implementing the Procedural Rights of the Child in the Family Justice Systems of Some Southeast European Countries Slađana Aras Kramar and Ivana Milas Klarić Abstract Children can and do have different individual rights, but these have almost no value if they cannot be exercised. Therefore, it is extremely important to guarantee the procedural rights of children at the legislative level, empowering them to protect their threatened or violated individual rights in court (and administrative) proceedings. Children as holders of certain individual rights should be empowered to initiate proceedings for their realisation and protection. However, it is relatively common for children to be involved in divorce proceedings and proceedings regarding parental care and responsibilities initiated by their parents (or certain custodial bodies in exercising their powers and duties in the public protection of children). The crc is of fundamental importance because of the way it affirms that children should not be seen as passive individuals but as fully-fledged persons with the right to express their own views on all matters affecting them. This chapter describes the procedural rights of children in family justice systems under current Croatian regulation, as well as the regulation of neighbouring post-Yugoslav countries. The authors outline the basic guidelines, characteristics and problems of the law, and current reforms in these countries relating to the issues of children’s visibility, participation and rights-enforcement in family court proceedings.

1

Introduction: Children’s Convention Rights

Children can and do have different individual rights, but these have almost no value if they cannot be exercised. Therefore, it is extremely important to guarantee the procedural rights of children at the legislative level, empowering children to protect their threatened or violated individual rights in court (and administrative) proceedings. Children as holders of certain individual rights should be empowered to initiate proceedings for their realisation and protection. However, it is relatively common for children to be involved in divorce proceedings and proceedings regarding parental care and responsibilities, © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_015

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i­ nitiated by their parents (or certain custodial bodies/social welfare centres in exercising their powers and duties in the public protection of children). The un Convention on the Rights of the Child (crc)1 is of fundamental importance because of the way it affirms that children should not be seen as passive individuals but as fully-fledged persons with the right to express their own views on all matters affecting them.2 Article 12 of the crc guarantees 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 must be given due weight in accordance with the age and maturity of the child.3 The crc imposes a duty upon the Member States to enable the participation of the child in judicial and administrative procedures in order to express his or her views, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.4 Furthermore, the right of the child to express his or her views should be read with consideration given to article 3 of the crc, which directs that ‘the best interests of the child shall be a primary consideration’.5 The right of the child to express his or her views, as it is guaranteed in the crc, does not mean autonomy for the child. Article 12 of the crc is about consultation and participation and not about self-determination. Children have the right to be heard and to have their views taken seriously, but not to make decisions which are normally left to the courts. So the final decision is reserved for the courts (and other bodies), but the courts (and other bodies) should provide children with an opportunity to be heard in any judicial and administrative proceedings affecting the child.6 The manner in which children are to be heard in judicial and administrative proceedings is not clearly specified. Article 12 of the crc does not guarantee that the child will be heard in person or by a representative designated to act for that child. It refers only to the child’s views being transmitted either 1 Convention on the Rights of the Child, 1989 United Nations General Assembly Resolution 44/25 (1989). 2 For a detailed discussion of the initiatives of the United Nations in the field of children’s rights and a commentary on the crc, see Fortin J Children’s Rights and the Developing Law 2 ed (2003) 35–49; Bainham A Children: The Modern Law 3 ed (2005) 66–78. See also Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009). 3 Art. 12(1) crc. 4 Art. 12(2) crc. 5 Committee on the Rights of the Child, General Comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1) (2013) 11. 6 See Fortin J Children’s Rights and the Developing Law 2 ed (2003) 198.

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d­ irectly or through a representative or an appropriate body.7 The principle of children participating in decisions that affect them, as it is set out in article 12, is further ensured by the mechanisms provided for under the 1996 European Convention on the Exercise of Children’s Rights (ececr).8 The ececr is not concerned with creating substantive rights for children but with the practical implementation of their rights. The Council of Europe noted that a weakness of the crc is that children may not be able to exercise their substantive rights without appropriate procedural measures.9 The ececr is therefore a much more practical document.10 Article 1(2) of the ececr explains that the object of the Convention is, in the best interests of children, to promote their rights, to grant them procedural rights and to facilitate the exercise of these rights by ensuring that children are, themselves or through other persons or bodies, informed and allowed to participate in proceedings affecting them before a judicial authority. The ececr applies to children under the age of 18.11 It confines its application to family proceedings before a judicial authority which, for these purposes, includes an administrative authority having equivalent powers.12 The ececr contains no definition of family proceedings but it is made explicit that it includes those involving the exercise of parental responsibilities, such as residence and access to children.13 Each state is required to specify at least three categories of family cases before a judicial authority to which the ececr is to apply.14 The key provisions of the ececr are articles 3 and 4. Article 3 of the ececr guarantees to the child considered by internal law as having sufficient understanding the rights to receive all relevant information, to be consulted and express his or her views, and to be informed of the possible consequences of compliance with these views and the possible consequences of any decision. 7

8 9 10 11 12 13 14

See Fortin J Children’s Rights and the Developing Law 2 ed (2003) 198. The Committee on the Rights of the Child recommends that, wherever possible, the child must be given the opportunity to be directly heard in any proceedings. Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009) 12. European Convention on the Exercise of Children’s Rights, ets No. 160 (1996). For a detailed discussion of the initiatives of the Council of Europe in the field of children’s rights, see Fortin J Children’s Rights and the Developing Law 2 ed (2003) 63–5. For commentary on the ececr, see Fortin J Children’s Rights and the Developing Law 2 ed (2003) 199–202; Bainham A Children: The Modern Law 3 ed (2005) 577–9. Art. 1(1) ececr. Art. 1(3) and art. 2(a) ececr. Art. 1(3) ececr. Art. 1(4) ececr. For Croatia and the neighbouring post-Yugoslav countries, see Section 2 below.

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Article 4 of the ececr relates to separate representation of children in cases of conflicts of interest where internal law precludes the holders of parental responsibilities from representing the children themselves. It provides that, in these circumstances, the child concerned is entitled to apply, in person or through other persons or bodies, for a special representative in proceedings before a judicial authority affecting the child.15 Seeing as the 1950 (European) Convention for the Protection of Human Rights and Fundamental Freedoms (echr)16 guarantees the fundamental human rights of all people, irrespective of age, living within the boundaries of the states which ratified it, its mechanisms are of overriding importance for the procedural rights of family members, including children. Articles 6, 817 and 1418 of the echr are of key importance in cases involving children and families. Failure to ensure adequate participation and representation of children in legal proceedings might lead to a breach of article 6 of the echr, which guarantees the right to a fair hearing in civil as well as criminal proceedings.19 Although Croatia and other Southeast European countries, in particular the neighbouring post-Yugoslav countries, are Member States of the crc, the legal framework and practice of the courts and other bodies of these countries do not follow, entirely and in the same way, the requirements of article 12 of the crc. This chapter describes the procedural rights of children in family justice systems under the current Croatian regulation, as well as regulation of the neighbouring post-Yugoslav countries. The authors outline the basic guidelines, characteristics and problems of the law, and current reforms in these 15

16 17 18 19

Fortin has highlighted the restrictive nature of the requirement of ‘understanding’ on the part of the child when compared with the more liberal requirement in article 12 of the crc that the child should merely be ‘capable of forming his or her own views’ on the matter in question. She also draws attention to the problem of formally demonstrating a conflict of interest between the child and the holders of parental responsibilities for the purpose of demanding a separate representative. Fortin J Children’s Rights and the Developing Law 2 ed (2003) 200–1. For further comments on the ececr, see Bainham A Children: The Modern Law 3 ed (2005) 579. Convention for the Protection of Human Rights and Fundamental Freedoms, cets No. 005 (1950). Article 8 of the echr guarantees to children and parents and, to a lesser extent, members of the wider family the right to respect for their family life with one another. Article 14 of the echr constitutes a general prohibition on discrimination in the delivery of Convention rights. The Grand Chamber of the ECtHR indicated that it would be going too far to say that domestic courts should always hear a child in court on the question of access (contact). Sahin v Germany [gc] 2003-VIII ECtHR Rep 63, 66; Somerfeld v Germany [gc] 2003-VIII ECtHR Rep 137.

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countries relating to the issues of children’s visibility, participation and rightsenforcement in family court proceedings. 2

The Family Justice System and Procedural Rights of the Child in Croatia and the Neighbouring Post-yugoslav Countries: An Outline of the Research

As regards children’s visibility, participation and enforcement of rights in family court proceedings, the chapter discusses the main characteristics of the Croatian reform finalised with the adoption of the 2015 Family Act (hereinafter CroFA 2015),20 which is a significant legislative step forward in the implementation of article 12 of the crc.21 Taking into account the same starting-point of development, and in order to outline the trends of convergence and divergence, this chapter analyses the current law of other post-Yugoslav countries on the participation of the child in the family justice system, as well as data collected on the enforcement of children’s rights in family court proceedings. In addition to dealing with Croatia, the comparative law research includes Slovenia,22 Serbia,23 Montenegro24 and Bosnia and Herzegovina.25 The chapter focuses on the implementation and exercise of procedural rights of children in the family justice system of the countries that emerged after the dissolution of Yugoslavia. Family court proceedings of the postYugoslav countries refer to the procedure in matrimonial matters, matters of parentage (maternity and paternity matters), matters of parental care and responsibilities, matters of measures for the protection of the rights and interests of children, and maintenance.26 Regarding child visibility and exercise of the procedural rights of children in matters affecting them, Croatia, Slovenia and Montenegro have specified proceedings for deciding on parental care and contact (during the divorce of parents), proceedings for the exercise of parental care, measures for the protection of personal rights and interests of a child, 20 21 22 23 24 25 26

Family Act of the Republic of Croatia of 2015 Official Gazette of the rc 103/2015. See Ministry for Social Policy and Youth Obrazloženje Konačnog prijedloga Obiteljskog zakona [Explanation of the Final Draft of the Family Act] (2015) 180, 184. See Sections 4 and 8 below. See Sections 5 and 8 below. See Sections 6 and 8 below. See Sections 7 and 8 below. The adoption and guardianship matters are still in the administrative authority of these countries. For Croatia, see art. 345 CroFA 2015.

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and proceedings for adoption and child guardianship as categories of family proceedings before a judicial authority to which the ececr is to apply.27 Slovenia adds to this list the procedure for managing a child’s assets and determining the level of maintenance. 3 Croatia In 2015 Croatia adopted the new Family Act, the fourth law of the same name which has been adopted since Croatian independence.28 Although the new Act made serious qualitative and quantitative interventions, the CroFA 2015 27

28

Art. 1(4) ececr. For the ececr, see Section 1 above. See art. 3 of the Act on Ratification of the European Convention on the Exercise of Children’s Rights Official Gazette of the rc 1/2010. Bosnia and Herzegovina has not signed and ratified the ececr. Serbia has signed the ececr but has not ratified it yet. For the list of declarations to the ececr, see http://conventions.coe.int/Treaty/Commun/ListeDeclarations. asp?NT=160&CM=&DF=&CL=ENG&VL=1 (accessed 23 June 2015). After Croatian independence, the Marriage and Family Relations Act of 1978 (Official Gazette of the src 11/1978 27/1978-correction 45/1989 51/1989-consolidated text 59/1990 25/1994 – see the Decision of the Constitutional Court of the rc) was applied, which as a former socialist government regulation was taken into the Croatian legislation and, with a few amendments, was in force until 1999. In 1998 the Family Act (Official Gazette of the rc 162/1998) was enacted, based on the provisions of the Marriage and Family Relations Act (of the Socialist Republic of Croatia). This Act from 1998 was short-lived and soon replaced by a new Act of the same name in 2003. The Family Act of 2003 (Official Gazette of the rc 116/2003; hereinafter CroFA 2003) was amended in 2004 (Official Gazette of the rc 17/2004 136/2004), 2007 (Official Gazette of the rc 107/2007) and 2011 (Official Gazette of the rc 61/2011). Some interventions in the CroFA 2003 were made with the Amendments to the Civil Procedure Act of 2011 (Official Gazette of the rc 57/2011) and 2013 (Official Gazette of the rc 25/2013). In 2014 Croatia adopted the new Family Act (Official Gazette of the rc 75/2014 83/2014 – see the Decision of the Constitutional Court of the rc 5/2015 – see the Decision of the Constitutional Court of the rc; hereinafter CroFA 2014), the third law of the same name which was adopted since Croatian independence. However, the Croatian Constitutional Court initiated the procedure of constitutional review of the CroFA 2014. In addition, the Court temporarily suspended the execution of individual acts and actions undertaken on the basis of the 2014 Family Act and ordered that the 2003 Family Act should apply until a final decision is reached in the constitutional review procedure. In exercising the Decision of the Constitutional Court of the rc (Official Gazette of the rc 5/2015), the Croatian government prepared a new Family Act (2015) that essentially replaced – with minor interventions – the provisions of the 2014 Family Act. See Ministry for Social Policy and Youth Obrazloženje Konačnog prijedloga Obiteljskog zakona [Explanation of the Final Draft of the Family Act] (2015) 183–4.

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remained sedes materiae of the Croatian family law and procedure. The legalpolitical goal which guided the Croatian legislator while drafting the new Family Act was to raise the level of protection of children.29 Therefore, in relation to the Family Act of 2003,30 the qualitative changes focused primarily on the regulation of parental responsibilities, measures to protect the rights and interests of the child, adoption, guardianship, child maintenance and participation of children in family (court) proceedings.31 The participation of the child in family court proceedings affecting his or her rights and interests was strengthened by the new Family Act of 2015. The Act of 2015 contains a separate chapter on the participation of the child (and parents, as well as other people in the proceedings), among the general provisions on family court proceedings.32 When regulating children’s participation in family court proceedings, the CroFA 2015 took into account all four of the procedural aspects of the position of children. Therefore, the CroFA 2015 expressly prescribes the position of the child as a party to certain family court proceedings; the procedural ability of the child to undertake some or all actions in family court proceedings affecting his or her rights and interests; the child’s representation in the proceedings (separate from the parents in the case of a conflict of interests); as well as the right of the child to express his or her view in proceedings that affect him or her. Each of these points is in turn elaborated upon below. • In order to resolve controversies that exist in Croatian jurisprudence and theory about the position of a child as a party to family court proceedings,33 29 30

31 32 33

See Ministry for Social Policy and Youth Obrazloženje Konačnog prijedloga Obiteljskog zakona [Explanation of the Final Draft of the Family Act] (2015) 170–3. Despite the adoption of (another) Family Act in 2003 and completed interventions in 2004, 2007 and 2011, the participation of children in family (court) proceedings and the exercise of children’s rights to express their views were assessed as unsatisfactory. Ministry for Social Policy and Youth Obrazloženje Konačnog prijedloga Obiteljskog zakona (Explanation of the Final Draft of the Family Act) (2015) 173. For a study conducted at the municipal courts in Zagreb, Split and Osijek, see Rešetar B Pravna zaštita prava na susrete i druženja u obiteljskom pravu (Legal protection of the right to contact in family law) (PhD thesis, Zagreb University, 2009) 314–16. Regarding the participation of children in family court proceedings and problems in practice, see more in: Aras S ‘Položaj djeteta u postupku prema novom Obiteljskom zakonu’ [The position of the child in the procedure under the new Family Act] in Barbić J (ed) Novo uređenje obiteljskih sudskih postupaka [New regulation on family court proceedings] (2014) 35–65. The provisions of the CroFA 2015 came into force on 1 November 2015 (art. 562 CroFA 2015). Arts. 358–63 CroFA 2015. See Ministry for Social Policy and Youth Obrazloženje Konačnog prijedloga Obiteljskog zakona [Explanation of the Final Draft of the Family Act] (2015) 277; Aras S ‘Položaj djeteta u

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the CroFA 2015 explicitly stipulates that a child is a party to all proceedings related to the determination of his or her rights and interests,34 including those in which decisions are made about the residence of a child, contacts with the other parent, or other issues of parental responsibilities and child maintenance. Those proceedings are conducted separately or are associated with divorce procedures.35 • The CroFA 2015 regulates the judicial recognition of a child’s procedural ability to undertake some or all actions in family court proceedings affecting his or her rights and interests.36 In matters in which decisions are made about the personal rights and interests of the child, the court shall allow a child who is 14 years old at his or her request to present facts and evidence, seek legal remedies and undertake other actions in the proceedings if the child is capable of understanding the meaning and legal consequences of these actions. Prior to reaching a decision, the court must seek an opinion from the social welfare centre.37 • For proceedings in which there is a conflict of interest between a child, his or her parents and/or the employees of social welfare centres, the CroFA 2014 introduced separate representation of the child through a new institution called the Centre for Special Guardianship.38 • The child is guaranteed the right to express his or her views, which is secured by the imposition of certain duties on the court, social welfare centres and special guardians.39 In proceedings on personal and property rights and the interests of the child, the court must allow the child to express his or her views, unless the child is opposed to expressing them.40 The provisions of the CroFA 2015 distinguish between children are older than 14 years and those younger than 14 years in respect of the space and people who will interview the child. The court must allow the child to express his or her views

34 35 36 37 38 39 40

postupku prema novom Obiteljskom zakonu’ [The position of the child in the procedure under the new Family Act] in Barbić J (ed) Novo uređenje obiteljskih sudskih postupaka [New regulation on family court proceedings] (2014) 35–65; Aras S Uzdržavanje djece: Sudski alimentacijski postupci u domaćem i poredbenom pravu [Child maintenance: Alimony court proceedings in domestic and comparative law] (2013) 274–81 431–9. Art. 358 CroFA 2015. Art. 358 and 414 CroFA 2015. Art. 359 CroFA 2015. Art. 359(1) and (2) CroFA 2015. Art. 240, arts. 544–50. CroFA 2014. The provisions on the Centre for Special Guardianship of the CroFA 2014 have been taken in the CroFa 2015. Art. 360 CroFA 2015. Art. 360(1) CroFA 2015.

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in a convenient place in the presence of a qualified person if it deems it necessary considering the circumstances of the case.41 If a child is younger than 14 years, the court shall allow the child to express his or her views with the help of a special guardian or other qualified person.42 However, the court is not required to determine the child’s views where there are particular justified reasons for not doing so, reasons which must be explained in the court’s decision.43 In proceedings affecting a child, the child must receive all relevant information and be informed of the possible consequences of any decision in a manner that is appropriate for his or her age and if there is no risk for the development, care and health of the child.44 The child’s special guardian, the court or a competent person from a social welfare centre has the obligation to notify the child, depending on the circumstances of the case, which the court must take into account.45 4 Slovenia In Slovenian law a child’s participation in family court proceedings is regulated by the Marriage and Family Relations Act (hereinafter SloMFRA)46 and the Civil Procedure Act (hereinafter SloCPA).47 The SloCPA and SloMFRA contain 41 42 43 44 45 46

47

Art. 360(2) CroFA 2015. Art. 360(3) CroFA 2015. Art. 360(4) CroFA 2015. Art. 360(5) CroFA 2015. Art. 360(6) CroFA 2015. Marriage and Family Relations Act of the Republic of Slovenia Official Gazette of SRSlo 15/1976 30/1986 1/1989 14/1989 – consolidated text Official Journal of RSlo 13/1994 82/1994 29/1995 26/1999 60/1999 – Decision of the CC of RSlo 70/2000 64/2001 110/2002 42/2003 – Decision of the CC of the RSlo 16/2004 69/2004 – consolidated text 101/2007 – Decision of the CC of RSlo 122/2007 – Decision of the CC of the RSlo 90/2011 – Decision of the CC of the RSlo 84/2012 – Decision of the CC of the RSlo 82/2015 – Decision of the CC of the RSlo. Civil Procedure Act of the Republic of Slovenia of 1999 Official Gazette of the RSlo 26/1999 96/2002 12/2003 – consolidated text 58/2003 – Decision of the CC of the RSlo 65/2003 – Decision of the CC of the RSlo 73/03 – Decision of the CC of the RSlo 2/2004 36/2004 – consolidated text 69/2005 – Decision of the CC of the RSlo 90/2005 – Decision of the CC of the RSlo 43/2006 – Decision of the CC of the RSlo 52/2007 73/2007 – consolidated text 102/2007 – Decision of the CC of the RSlo 45/2008 111/2008 – Decision of the CC of the RSlo 121/2008 – Decision of the CC of the RSlo 47/2009 – Decision of the CC of the RSlo 57/2009 – Decision of the CC of the RSlo 12/2010 – Decision of the CC of the RSlo 49/2010 – Decision

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provisions on judicial recognition of a child’s procedural ability,48 on the appointment of a special guardian/representative in the event of a conflict of interest,49 as well as on a child’s right to express his or her views and to be informed.50 A child who has attained the age of 15 years, and is able to understand the meaning and legal consequences of his or her actions, must be allowed by the court to independently undertake procedural actions as a party.51 But the recognition of procedural ability of a child who has attained the age of 15 years is possible only if the proceedings arose from the relationship between parents and children.52 The SloMFRA and SloCPA contain provisions on the appointment of a special guardian for the child if his or her interests and those of the parents who represent him or her are in conflict. The acts prescribed competitive jurisdiction of the social welfare centre and the court to appoint a special guardian.53 In certain family court proceedings, the SloCPA guarantees the child the right to be informed and the right to express his or her views. When the court decides on the care and upbringing of the child and on the contact of the child with parents and others, the child who is able to understand the importance of the procedure and consequences of the decision should be informed in an appropriate way of the initiation of proceedings and the right to express his or her views. Taking into account the child’s age and other circumstances, the judge invites the child to an informal interview in or outside of the court, with the help of the social welfare centre or school teachers. During the interview the child may be accompanied by a person of confidence selected by the child. This person can help the child to express his or her views.54 The judge prepares the minutes of the interview with the child, and can also choose to have the

48 49 50 51 52

53 54

of the CC of the RSlo 50/2010 – Decision of the CC of the RSlo 107/2010 – Decision of the CC of the RSlo 58/2011 – Decision of the CC of the RSlo 75/2012 – Decision of the CC of the RSlo 29/ 2013 – Decision of the CC of the RSlo 40/2013 – Decision of the CC of the RSlo 89/2013 – Decision of the CC of the RSlo 92/2013 – Decision of the CC of the RSlo 10/2014 – Decision of the CC of the RSlo 48/2015 – Decision of the CC of the RSlo. Art. 409 SloCPA. Art. 213(1) SloMFRA; art. 409 SloCPA. Art. 410 SloCPA. Art. 409(1) SloCPA. See Rijavec V ‘Postopek v zakonskih sporih ter sporih iz razmerij med starši in otroki’ [Proceedings in matrimonial matters and matters arose from the relationship between parents and children] in Ude L & Galič A (eds) Pravdni postopek. Zakon s komentarjem. iii knjiga [Civil procedure. Act with commentary. 3rd book] (2009) 620. Art. 213(1) SloMFRA; art. 409(4) SloCPA. Art. 410(1) SloCPA.

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interview audio-recorded. The court can decide to prohibit parental access to the minutes or recordings, taking into account the interests of the child.55 The SloCPA recognises the specific procedural ability of a child who has already expressed his or her views in the procedure and is older than 15 to undertake certain procedural actions, or initiate the stage of procedure. Specifically, the court must deliver a decision to the child, against which he or she has a right to appeal.56 5 Serbia Participation of the child in family court proceedings in Serbia is regulated by the Family Act of 2005 (hereinafter SerFA).57 Among the procedural rights of the child, the SerFA regulates the child’s right to express his or her views and the right to be informed,58 as well as the right to a special guardian/temporary representative, and to request relevant bodies to appoint a special guardian/ temporary representative.59 A child who is capable of forming his or her views has the right to express them freely,60 and these views must be given due consideration in all matters that affect the child and in all proceedings concerning the determination of his or her rights in accordance with the age and maturity of the child.61 For this purpose, the child shall be entitled to obtain in due course all the information he or she needs to form views.62 The SerFA contains a presumption that a child who has attained the age of 10 is capable of forming his or her views, stipulating that a child of that age can freely and directly express them in any judicial and administrative proceedings in which decisions are made about his or her rights.63 In addition, a child who has attained the age of 10 can, alone or through another person or institution, contact the court or administrative authority and request assistance in exercising the right to express freely his or her views.64 55 56 57 58 59 60 61 62 63 64

Art. 410(1) SloCPA. Art. 410(3) SloCPA. Family Act of the Republic of Serbia of 2005 Official Gazette of the RSer 18/2005 72/2011 6/2015. Arts. 65, 266 and 267 SerFA. Art. 265 SerFA. Art. 65(1) SerFA. Art. 65(3) SerFA. Art. 65(2) SerFA. Art. 65(4) SerFA. Art. 65(5) SerFA.

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The court and administrative authority must determine the child’s views in cooperation with the school psychologist or the guardianship body, family counselling or other institution specialised in family mediation, and in the presence of the person selected by the child him- or herself.65 Along with the child’s right to express his or her views, the SerFA guarantees the child the right to a special guardian or temporary representative. The guardianship body is authorised to appoint a special guardian in a dispute related to the protection of the rights of the child and in proceedings related to the exercise of parental responsibilities.66 The jurisdiction of the guardianship body to appoint a special guardian is competitive with the jurisdiction of the court to appoint a temporary representative.67 The general provision on the right of the child to express his or her views in all matters affecting him- or herself is determined with duties of the court and the special guardian or temporary representative68 to provide that the child gets all the information he or she needs in time,69 and to allow the child to express his or her views before the court,70 or to present the views of the child to the court if the child has not directly expressed his or her views before the court.71 Unlike the other European systems analysed here, the Serbian FA does not recognise a child’s (special) procedural ability to undertake all or some of the actions in the proceedings in which decisions concerning his or her rights and interests are made.72 6 Montenegro Participation of children in family court proceedings is regulated by the Family Act of Montenegro of 2007 (hereinafter MNFA).73 The Montenegrin FA prescribes the child’s right to express his or her views and the right to be

65 66 67 68 69 70 71 72 73

Art. 65(6) SerFA. Art. 265(2) SerFA. Arg. ex: art. 265(2) and (3), art. 266(2) SerFA. See Poznić B & Rakić-Vodinelić V Građansko procesno pravo [Civil procedure] 16 ed (2010) 471. Arts. 266 and 267 SerFA. Art. 266(3) and art. 267 SerFA. Art. 266(3) SerFA. Art. 267 SerFA. See Poznić B & Rakić-Vodinelić V Građansko procesno pravo [Civil procedure] 16 ed (2010) 472. Family Act of Montenegro of 2007 Official Gazette of the RMN 1/2007 Official Gazette of MN 73/2010.

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informed,74 as well as the right to a special guardian/temporary representative and to request from the relevant authorities the appointment of a special guardian/temporary representative.75 These children’s rights are regulated in the same way as in the Serbian FA. To avoid repetition, we refer the reader to what was said about the procedural rights of the child in Serbian law.76 7

Bosnia and Herzegovina77

Participation of the child in family court proceedings in the Federation of Bosnia and Herzegovina is regulated by the Family Act of 2005 (hereinafter BHFA).78 Among the procedural rights of the child, the BHFA regulates the child’s right to express his or her views79 and the right to be informed,80 as well as the right to a special guardian/temporary representative.81 The BHFA also contains provisions on the procedural ability of children who have attained the age of 14 years.82 The child has the right to express his or her views in accordance with his or her age and maturity, and these views must be given due consideration.83 For this purpose, the child is entitled to obtain all the information needed to form views in proceedings regarding parental responsibilities.84 Along with the child’s right to express his or her views, the BHFA guarantees the child the right to a special guardian.85 The guardianship body is authorised to appoint a special guardian in proceedings before a judicial authority, and courts are authorised to appoint this guardian in proceedings before an administrative authority.86 74 75 76 77

78 79 80 81 82 83 84 85 86

Art. 67, art. 357 and art. 358 MNFA. Art. 356 MNFA. See Section 5 above. Taking into account the fact that the family justice systems of the Federation of Bosnia and Herzegovina, the Republic of Srpska and the District of Brčko are very similar (for some of the issues they are identical), only the system of the Federation of Bosnia and Herzegovina will be analysed. Family Act of the Federation of Bosnia and Herzegovina of 2005 Official Gazette of the FBH 35/2005 41/2005 13/2014. Arts. 125(1), 149 and 271(2) BHFA. Arts. 149 and 271(2) BHFA. Arts. 125(3) and (4), and art. 271(5) BHFA. Arts. 271(1), (3) and (4) BHFA. Art. 125(1) BHFA. Art. 149(1) BHFA. Art. 125(3) BHFA. Art. 125(4) BHFA.

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A child who has attained the age of 14, and is able to understand the meaning and legal consequences of his or her actions, is empowered to independently undertake procedural actions as a party.87 Unlike in Slovenian law, in the BHFA the recognition of procedural ability to a child who has attained the age of 14 is not restricted only to proceedings arising from the relationship between parents and children.88 At the legislative level, in 2014 positive developments were made in the Republic of Srpska. The Amendments to the Family Act of 201489 contain new provisions relating to the right of the child to express his or her views. Article 81(b) prescribes that a child has the right to express his or her views in accordance with his or her age and maturity, as well as the right to be timeously informed. It is also stipulated that the views of the child must be given due consideration in all matters affecting the child and in all proceedings concerning the determination of his or her rights in accordance with the child’s age and maturity. 8

Main Deficiencies in the Family Justice Systems of Croatia and the Neighbouring Post-Yugoslav Countries

The main deficiencies of the post-Yugoslav family justice systems in the field of children’s participation can be summarised in a few common points. First, the legal regulation of participation of children in civil and in particular family court proceedings is unclear. However, in recent times significant legislative reforms have been implemented in terms of children’s participation in the post-Yugoslav family justice systems.90 Secondly, there is a noticeable tendency to accord procedural ability to a child – that is, the ability to undertake some or all actions in family court proceedings affecting his or her rights and interests. But the recognition of procedural ability is linked to a certain age of the child (15 or 14 years of age) (Slovenia, Croatia (FA 2015), the Federation of Bosnia and Herzegovina). On the other hand, children who are procedurally incapable are represented by their parents as legal representatives in family court proceedings. If it is necessary to provide representation of children separately from their parents, the 87 88 89 90

Art. 271(1) BHFA. See Section 4 above. Family Act of the Republic of Srpska of 2002 Official Gazette of the R of Srpska 54/2002 41/2008 63/2014. For Croatia, see Section 3 above. For the Republic of Srpska, see Section 7 above.

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­appointment of a special guardian or guardianship body as legal representative of the rights and interests of children is needed. However, in some postYugoslav judicial systems, the jurisdiction of guardianship authority to appoint a special guardian is competitive with the jurisdiction of courts to appoint a temporary representative (curator ad litem). Provisions according to which both the court authority and the guardianship authority are authorised for the appointment of a special guardian/temporary representative (curator ad litem) in the same case blur the responsibility, and point to the fact that the institution of special guardian has not found a place in the practice of these post-Yugoslav countries.91 Thirdly, the countries under analysis recognise the right of children to express their views in court cases that affect them. However, the categories of proceedings in which this right is guaranteed to a child are variously defined in the post-Yugoslav family justice systems. According to the laws of some countries, the child’s right to express his or her views is guaranteed in all family court proceedings that affect children and where decisions are made concerning their rights (Croatia (FA 2015), Serbia, Montenegro and, it seems, the Federation of Bosnia and Herzegovina and the Republic of Srpska). In other of the family justice systems, this children’s right is limited to court proceedings in which decisions are made about the residence of a child, contact with the other parent, and other issues of parental responsibilities. Those proceedings are conducted separately or are associated with divorce procedures (Slovenia).92 91

92

For Slovenia, see Ombudsman for Human Rights of Republic of Slovenia Zagovornik – glas otroka [Legal representative – voice of the child] (2006) 42 50. For Croatia, see Ombudsperson for Children of the Republic of Croatia Izvješće o radu pravobraniteljice za djecu [The report on the work of the Ombudsperson for Children] (2014) 93–4. For data on the number of appointed special guardians in Croatia under the old Family Act of 2003, see the annual statistical reports of the Ministry for Social Policy and Youth of the Republic of Croatia, available at http://www.mspm.hr/pristup-informacijama/statisticka -izvjesca-1765/godisnje-izvjesce-2012/509 (accessed 13 November 2014). For Montenegro, see Ombudsman for Human Rights and Freedoms of Montenegro Izvještaj o radu za 2013. godinu [The report on the work for 2013] (2014) 110. The Committee on the Rights of the Child is concerned that children are often denied the right to be heard, even though it is obvious that the matter under consideration is affecting them and they are capable of expressing their own views with regard to this matter. While the Committee supports a broad definition of ‘matters’, which also covers issues not explicitly mentioned in the CRC, it recognises the clause ‘affecting the child’, which was added in order to clarify that no general political mandate was intended. Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009) 10. For the list of declarations to the ececr, see Section 2 above.

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There are also differences relating to the child’s ability to express his or her views. While the laws of some countries do not determine the age related to the exercise of the right to express his or her views, but rather require the capacity of the child to exercise that right defined as the ability to understand the procedure and the importance of the decision (Croatia (FA 2015), the Federation of Bosnia and Herzegovina, the Republic of Srpska), the other compared family justice systems – in addition to the general requirement that the child is able to form an opinion – presume that a child of a certain age (10 or 15) is able to express his or her views (Slovenia, Serbia, Montenegro).93 In the compared family justice systems, the child can express his or her views directly to the court or in the guardianship body (social welfare centre), or through a special guardian who must present these views of the child to the court.94 The regulations of some countries also provide the possibility for a child to choose a person of confidence who may attend the interview with him or her (Slovenia, Serbia, Montenegro). However, it should be noted that the position of the person of confidence that the child chooses in the proceedings is not clearly regulated. It remains questionable whether he or she has an advisory role that only helps the child to express views in the proceedings (and in this case, what his or her position is in relation to the special guardian as the legal representative of a child), or whether the person that the child has chosen also assumes the role of a guardian as the legal representative of the child. Also, the question is whether the court delivers a decision on the appointment of that person, and whether there is a possibility of appeal. The practice of some of the compared countries, however, shows that a child is typically interviewed – if an interview is carried out in the first place95 – on the premises of the 93

94

95

The Committee on the Rights of the Child emphasises that art. 12 of the CRC imposes no age limit on the right of the child to express his/her views, and discourages States Parties from introducing age limits either in law or in practice which would restrict the child’s right to be heard in all matters affecting him/her. Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009) 9. After the child has decided to be heard, he or she will have to decide how to be heard: ‘either directly, or through a representative or appropriate body’. The Committee on the Rights of the Child recommends that, wherever possible, the child must be given the opportunity to be directly heard in any proceedings. Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009) 12. For Croatia, see Ministry for Social Policy and Youth Obrazloženje Konačnog prijedloga Obiteljskog zakona [Explanation of the Final Draft of the Family Act] (2015) 173. For research conducted at the Croatian municipal courts in Zagreb, Split and Osijek, see Rešetar B Pravna zaštita prava na susrete i druženja u obiteljskom pravu [Legal protection of the right to contact in family law] (PhD thesis, Zagreb University, 2009) 314–16. On the

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guardianship body (social welfare centre), and that the interview is conducted by the staff of the social welfare centre, that is, usually a psychologist employed at the centre.96 Fourthly, in the compared family justice systems of Southeast Europe there are no special family departments or family courts with jurisdiction over family cases. In addition, there seems to be no continuing education or specialisation for judges who deal with family law cases, nor are there qualified staff, child-friendly premises for interviews with children or suitable audio-visual technology.97 As a rule, therefore, the voice of children cannot be heard in courtrooms in these countries.98 Fifthly, family court cases take far too long.99 Despite the inertia of the system and the length of court proceedings, these countries have the highest number

96

97

98

99

­participation of children in family court proceedings and problems in practice of Croatian courts, see Aras S ‘Položaj djeteta u postupku prema novom Obiteljskom zakonu’ [The position of the child in the procedure under the new Family Act] in Barbić J (ed) Novo uređenje obiteljskih sudskih postupaka [New regulation on family court proceedings] (2014) 35–65. For the current situation in Montenegro, see Ombudsman for Human Rights and Freedoms of Montenegro Izvještaj o radu za 2013. godinu [The report on the work for 2013] (2014) 110. For Croatia, see Ombudsperson for Children of the Republic of Croatia Izvješće o radu pravobraniteljice za djecu [The report on the work of the Ombudsperson for Children] (2014) 93–4. For Slovenia, see Ombudsman for Human Rights of Republic of Slovenia Zagovornik – glas otroka [Legal representative – voice of the child] (2006) 42. For Montenegro, see Ombudsman for Human Rights and Freedoms of Montenegro Izvještaj o radu za 2013. godinu [The report on the work for 2013] (2014) 110. The Committee on the Rights of the Child emphasises that art. 12 of the CRC imposes a duty on States Parties to provide training on article 12 and its application in practice to all professionals working with, and for, children, including lawyers, judges, police, social workers, community workers, psychologists, caregivers, residential and prison officers, teachers at all levels of the educational system, medical doctors, nurses and other health professionals, civil servants and public officials, asylum officers and traditional leaders; States Parties also have to ensure appropriate conditions for supporting and encouraging children to express their views. Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009) 14. For Croatia, see fn. 95 above. For Slovenia, see Ombudsman for Human Rights of Republic of Slovenia Zagovornik – glas otroka [Legal representative – voice of the child] (2006) 42. For Montenegro, see Ombudsman for Human Rights and Freedoms of Montenegro Izvještaj o radu za 2013. godinu [The report on the work for 2013] (2014) 110, 129. For Croatia, see Ministry for Social Policy and Youth Obrazloženje Konačnog prijedloga Obiteljskog zakona [Explanation of the Final Draft of the Family Act] (2015) 171, 173, 276. For Montenegro, see Ombudsman for Human Rights and Freedoms of Montenegro Izvještaj o radu za 2013. godinu [The report on the work for 2013] (2014) 110. For Bosnia and

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of professional judges, and the costs of the judiciary as well as the related budget expenses are significantly high compared to the European average.100 Sixthly, organisational structures and procedures are complicated and overlapping, with no clear sense of leadership or accountability within different parts of the family justice systems. Individuals, organisations and bodies across different parts of the family justice systems often do not trust each other.101 Seventhly, children and adults alike are often confused about what is happening to them. Many parents do not know where to get the information and legal advice they need to resolve their issues. There is limited awareness of family mediation as an alternative to the court; in some of the compared judicial systems, the former is poorly developed, which results in large numbers of cases ending up in court. The legal system has become extremely complex, especially after the fall of socialism, and certain social-service elements are gradually being abandoned in the compared countries. Despite the fact that in the last few years the legal aid reform has been given high priority on the agenda of judicial reforms in the compared countries, the legal aid schemes have significant deficiencies in some of these countries.102 Eighthly, although some countries of this part of Europe have implemented reforms at the legislative level and regulated children’s procedural rights in Herzegovina, see Ombudsman for Human Rights of Bosnia and Herzegovina Godišnje izvješće o rezultatima aktivnosti institucije ombudsmana za ljudska prava Bosne i Hercegovine [Annual report on the results of activity of the institution of Ombudsman for Human Rights in Bosnia and Herzegovina] (2014) 22–3. See data of the cepej, European Commission for the Efficiency of Justice 2012 Edition of the Report, based on the 2010 data (2012) 172–3 388. 100 See European Commission for the Efficiency of Justice 2012 Edition of the Report, based on the 2010 data (2012) 28, 146–7. 101 For Croatia, see the research conducted on the collaboration between the Croatian courts and the social welfare centres in Aras S Uzdržavanje djece. Sudski alimentacijski postupci u domaćem i poredbenom pravu [Child maintenance: Alimony court proceedings in domestic and comparative law] (2013) 300–2. See also Ministry for Social Policy and Youth Obrazloženje Konačnog prijedloga Obiteljskog zakona [Explanation of the Final Draft of the Family Act] (2015) 173 276. For the current situation in Montenegro, see Ombudsman for Human Rights and Freedoms of Montenegro Izvještaj o radu za 2013. godinu [The report on the work for 2013] (2014) 110. 102 According to the latest Report of the cepej, Croatia spent only €0.1 per inhabitant for legal aid in 2010. In the same year, even Montenegro and Bosnia and Herzegovina – despite the fact that the latter has not yet adopted the ‘integrated’ Legal Aid Act – had a relatively higher budget for legal aid. Montenegro: €0.3 per inhabitant; Bosnia and Herzegovina: €1.5 per inhabitant; Slovenia: €2.8 per inhabitant. See European Commission for the Efficiency of Justice 2012 Edition of the Report, based on the 2010 data (2012) 45.

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their family justice systems, practice shows that children are usually reduced to observers in the making of decisions that are important for their future. Therefore, ombudsmen (for children) as well as NGOs in some of the compared countries have initiated and implemented projects aimed at strengthening the position and participation of the child in the family justice system.103 On the other hand, there are no official data on the number of family court proceedings in which children have participated and, in particular, have expressed their views. 9

Concluding Remarks: How to Improve the Implementation of the Procedural Rights of the Child in Post-Yugoslav Judicial Systems?

Despite reforms at the legislative level in some Southeast European countries that have emerged after the dissolution of Yugoslavia, it is necessary to take further steps in order to establish a family justice system in which the voice of children is truly heard in the proceedings that affect them.104 The following proposals are made to this end: (a) It is necessary to insist on the development of a dedicated, responsible family justice system. Our proposals focus on the need for improved judicial leadership and a change in judicial culture because the governments cannot make the necessary changes without cooperation and consultation with judges that deal with family cases. (b) Changing the way in which the courts are organised and establishing specialised family departments or family courts is an indispensable precondition for achieving better results in this segment of the judiciary. In addition, it is necessary to reduce the number of courts competent in family matters, both for pragmatic reasons (capital investment) and to enhance specialisation, efficiency and the continuity of jurisprudence. 103 In Slovenia, the pilot project Legal representative – voice of the child was conducted in the period 2007–2008, the main objective of which was to strengthen the procedural rights of the child, particularly in the field of child representation in the procedure in all cases where there is a conflict of interest between him/her and his/her parents (available at http://www.varuh-rs.si/projekti-in-promocija/projekti/zagovornik-glas-otroka-2007-do -2009/ (accessed 13 November 2014)). 104 The Committee on the Rights of the Child expressed its concern that laws are frequently changed and that this leads to inconsistent implementation as well as legal uncertainty. Committee on the Rights of the Child, Concluding observations on the combined third and fourth periodic reports of Croatia (2014) 2–3.

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(d)

(e)

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However, this should take into account the rural areas, where the transport is poor. Judges should be provided with, and encouraged to pursue, possibilities for specialising in family matters. Our proposals also underline the need to establish and organise professional services for legal assistance to children and young people, such services consisting of social pedagogues, social workers, psychologists and similar professionals in the family departments/courts. Continuing professional development is needed, along with interdisciplinary training not only for judges but those in other parts of the system as well.105 With changes in the organisation of courts making them more streamlined and effective, progress is expected in terms of the length of family court proceedings. It should be noted that the laws of the compared countries clearly make a distinction between certain family court proceedings and that, especially for public law proceedings (measures to protect the rights and interests of the child) and enforcement proceedings, shorter terms are prescribed, which heightens the responsibility of judges. In the context of a more effective organisation of the family justice system, it is necessary to ensure the principle of ‘one judge, one family’. The aim should be judicial continuity in all family cases related to one family. While it is clear that the compared countries are going through an economic crisis, our proposals focus on the need to effect budgetary redistribution in order to secure funds for equipment necessary for child-friendly courtrooms as well as information technology. This should facilitate the rationalisation of the proposed court network with family jurisdiction. Considering the urgency of family cases, particularly those involving children, and the need to hear the voice of the child in the courtroom, videoconferencing and the use of technology in general should be the future of the family justice systems in Southeast Europe. Hearings that do not need to take place in a courtroom should be held elsewhere (for example, in the home of the child or in the offices of the guardianship body). In addition to the efforts to change the court organisation, there should be efforts to develop other parts of the system, namely guardianship bodies. There is also a need to take significant steps in human resources

105 For Croatia, see recommendations in: Committee on the Rights of the Child, Concluding Observations on the Combined Third and Fourth Periodic Reports of Croatia (2014) 3–4.

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d­ evelopment, specialisation and technological equipment. The premises of guardianship bodies should be as family-friendly as possible.106 (g) The laws in all the compared countries guarantee children’s procedural right to representation in proceedings separate from their parents in situations where there is a conflict of interest, either by a special guardian or a guardianship body. However, in practice, in some countries the institution of special guardian does not apply, or the person appointed as special guardian is one proposed by the parent with whom there is a conflict of interest. Thus, the changes should focus on how to provide the child’s representative in proceedings not only at the level of the law but also concretely in practice. One way is to establish and develop a specific, specialised body – an Attorney for Children – who would be competent for the representation of children in proceedings in which there is a conflict of interest between them and their parents. Of course, another path for development is also possible: empowering attorneys at law to represent children in proceedings. But in that case the governments should provide additional funds in the budget for legal aid to cover the costs of attorneys. (h) At the implementation level, all parts of the system – including judges, special guardians/child representatives, social workers, psychologists and similar professions involved in family work – should be expected to join together in training, education and dialogue.107 The development of guidelines at a national level in the field of work and communication with children in the family justice system should also be considered. In addition, guidelines should be provided to psychologists and other professional workers, as well as children’s representatives, on how to provide high-quality assessments clearly setting out the child’s narrative and on how to present to the court the views of the child. (i) The countries should work to strengthen and encourage alternatives to court procedures in resolving family disputes. In addition, they should make further efforts to strengthen the legal aid system, especially in terms of general legal information and legal advice. In developing userfriendly legal aid systems, governments could partner with NGOs dealing with family law issues, which in some countries are already participating within and outside of the system of state-funded legal aid. 106 For Croatia, see recommendations in: Committee on the Rights of the Child, Concluding Observations on the Combined Third and Fourth Periodic Reports of Croatia (2014) 3–4. 107 For Croatia, see recommendations in: Committee on the Rights of the Child, Concluding observations on the combined third and fourth periodic reports of Croatia (2014) 5–7.

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Bibliography Books

Aras S Uzdržavanje djece. Sudski alimentacijski postupci u domaćem i poredbenom pravu [Child Maintenance: Alimony Court Proceedings in Domestic and Comparative Law] (2013) Zagreb: Zagreb Law Faculty. Bainham A Children: The Modern Law 3 ed (2005) Bristol: Family Law. Fortin J Children’s Rights and the Developing Law 2 ed (2003) London: LexisNexis UK. Poznić B & Rakić-Vodinelić V Građansko procesno pravo [Civil procedure] 16 ed (2010) Belgrade: Savremena administracija a.d.

Chapters in Books

Aras S ‘Položaj djeteta u postupku prema novom Obiteljskom zakonu’ [The position of the child in the procedure under the new Family Act] in Barbić J (ed) Novo uređenje obiteljskih sudskih postupaka [New regulation on family court proceedings] (2014) 35–65 Zagreb: Croatian Academy of Sciences and Arts. Rijavec V ‘Postopek v zakonskih sporih ter sporih iz razmerij med starši in otroki’ [Proceedings in matrimonial matters and matters arose from the relationship between parents and children] in Ude L & Galič A (eds) Pravdni postopek. Zakon s komentarjem. III knjiga [Civil procedure. Act with commentary. 3rd book] (2009) 611–49 Ljubljana: Uradni list.

Reports and Policies of Governmental Bodies

Committee on the Rights of the Child, Concluding Observations on the Combined Third and Fourth Periodic Reports of Croatia (2014) Geneva, available at http:// tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC %2fC%2fHRV%2fCO%2f3-4&Lang=en (accessed 22 June 2015). European Commission for the Efficiency of Justice 2012 Edition of the Report, based on the 2010 data (2012), available at http://www.coe.int/t/dghl/cooperation/cepej/ evaluation/2012/Rapport_en.pdf (accessed 13 May 2014). Ministry for Social Policy and Youth Obrazloženje Konačnog prijedloga Obiteljskog zakona [Explanation of the Final Draft of the Family Act] (2015) Zagreb, available at file:///C:/Users/Admin/Downloads/PZE_847.pdf (accessed 21 September 2015). Ombudsman for Human Rights and Freedoms of Montenegro Izvještaj o radu za 2013. godinu [The report on the work for 2013] (2014) Podgorica, available at http://www. ombudsman.co.me/Izvjestaji_Zastitnika.html (accessed 13 November 2014). Ombudsman for Human Rights of Bosnia and Herzegovina Godišnje izvješće o rezultatima aktivnosti institucije ombudsmana za ljudska prava Bosne i Hercegovine [­Annual report on the results of activity of the institution of Ombudsman for Human Rights

IMPLEMENTING PROCEDURAL RIGHTS OF THE CHILD IN SOUTHEAST EUROPE 269 in Bosnia and Herzegovina] (2014) Banja Luka, available at http://www.ombudsmen.gov.ba/documents/obmudsmen_doc2014042313584567cro.pdf (accessed 13 November 2014). Ombudsman for Human Rights of Republic of Slovenia Zagovornik – glas otroka [Legal representative – voice of the child] (2006) Ljubljana, available at http://www .varuh-rs.si/projekti-in-promocija/projekti/zagovornik-glas-otroka-2007-do-2009/ (accessed 13 November 2014). Ombudsperson for Children of the Republic of Croatia Izvješće o radu pravobraniteljice za djecu [The report on the work of the Ombudsperson for Children] (2014) Zagreb, available at http://www.dijete.hr/websites/dijete.hr/index.php/hr/izvjemainmenu -93/izvjeo-radu-pravobranitelja-za-djecu-mainmenu-94.htm (accessed 13 November 2014).

Theses

Rešetar B Pravna zaštita prava na susrete i druženja u obiteljskom pravu [Legal protection of the right to contact in family law] (PhD thesis, Zagreb University, 2009).

General Comments

Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009) Geneva, available at http://www2.ohchr.org/english/ bodies/crc/docs/AdvanceVersions/CRC-C-GC-12.pdf (accessed 22 June 2015). Committee on the Rights of the Child, General Comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1) (2013) Geneva, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fGC%2f14_&Lang=en (accessed 22 June 2015).

Treaties and Conventions

Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 005 (1950). Convention on the Rights of the Child, 1989 United Nations General Assembly Resolution 44/25 (1989). European Convention on the Exercise of Children’s Rights, CETS No. 160 (1996).

Cases

Decision of the Constitutional Court of the RC of 2015 U-I-3101/2014 Official Gazette of the RC 5/2015. Sahin v Germany [GC] 2003-VIII ECtHR Rep 63 98. Somerfeld v Germany [GC] 2003-VIII ECtHR Rep 137 161.

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Legislation Bosnia and Herzegovina

Family Act of the Federation of Bosnia and Herzegovina of 2005 Official Gazette of the FBH 35/2005 41/2005 13/2014. Family Act of the Republic of Srpska of 2002 Official Gazette of the R of Srpska 54/2002 41/2008 63/2014.

Croatia

Act on Ratification of the European Convention on the Exercise of Children’s Rights Official Gazette of the RC 1/2010. Family Act of the Republic of Croatia of 1998 Official Gazette of the RC 162/1998. Family Act of the Republic of Croatia of 2003 Official Gazette of the RC 116/2003 17/2004 136/2004 107/2007 57/2011 61/2011 25/2013 5/2015 – see the Decision of the Constitutional Court of the RC. Family Act of the Republic of Croatia of 2014 Official Gazette of the RC 75/2014 83/2014 – see the Decision of the Constitutional Court of the RC 5/2015 – see the Decision of the Constitutional Court of the RC. Family Act of the Republic of Croatia of 2015 Official Gazette of the RC 103/2015. Marriage and Family Relations Act of 1978 Official Gazette of the SRC 11/1978 27/1978 – correction 45/1989 51/1989 – consolidated text 59/1990 25/1994 – see the Decision of the Constitutional Court of the RC.

Montenegro

Family Act of Montenegro of 2007 Official Gazette of the RMN 1/2007 Official Gazette of MN 73/2010.

Serbia

Family Act of the Republic of Serbia of 2005 Official Gazette of the RSer 18/2005 72/2011 6/2015.

Slovenia

Civil Procedure Act of the Republic of Slovenia of 1999 Official Gazette of the RSlo 26/1999 96/2002 12/2003 – consolidated text 58/2003 – Decision of the CC of the RSlo 65/2003 – Decision of the CC of the RSlo 73/03 – Decision of the CC of the RSlo 2/2004 36/2004 – consolidated text 69/2005 – Decision of the CC of the RSlo 90/2005 – Decision of the CC of the RSlo 43/2006 – Decision of the CC of the RSlo 52/2007 73/2007 – consolidated text 102/2007 – Decision of the CC of the RSlo 45/2008 111/2008 – Decision of the CC of the RSlo 121/2008 – Decision of the CC of the RSlo 47/2009 – Decision of the CC of the RSlo 57/2009 – Decision of the CC of the RSlo 12/2010 – Decision of the CC of the RSlo 49/2010 – Decision of the CC of the RSlo 50/2010 – Decision of the

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CC of the RSlo 107/2010 – Decision of the CC of the RSlo 58/2011 – Decision of the CC of the RSlo 75/2012 – Decision of the CC of the RSlo 29/2013 – Decision of the CC of the RSlo 40/2013 – Decision of the CC of the RSlo 89/2013 – Decision of the CC of the RSlo 92/2013 – Decision of the CC of the RSlo 10/2014 – Decision of the CC of the RSlo 48/2015 – Decision of the CC of the RSlo. Marriage and Family Relations Act of the Republic of Slovenia Official Gazette of SRSlo 15/1976 30/1986 1/1989 14/1989 – consolidated text Official Journal of RSlo 13/1994 82/1994 29/1995 26/1999 60/1999 – Decision of the CC of RSlo 70/2000 64/2001 110/2002 42/2003 – Decision of the CC of the RSlo 16/2004 69/2004 – consolidated text 101/2007 – Decision of the CC of RSlo 122/2007 – Decision of the CC of the RSlo 90/2011 – Decision of the CC of the RSlo 84/2012 – Decision of the CC of the RSlo 82/2015 – Decision of the CC of the RSlo.

Internet Sources

Annual statistical reports of the Ministry for Social Policy and Youth of the Republic of Croatia, available at http://www.mspm.hr/pristup-informacijama/statisticka -izvjesca-1765/godisnje-izvjesce-2012/509 (accessed 13 November 2014). List of declarations to the ECECR, available at http://conventions.coe.int/Treaty/ Commun/ListeDeclarations.asp?NT=160&CM=&DF=&CL=ENG&VL=1 (accessed 23 June 2015). Pilot project Legal representative – voice of the child, available at http://www.varuh-rs .si/projekti-in-promocija/projekti/zagovornik-glas-otroka-2007-do-2009/ (accessed 13 November 2014).

chapter 15

(Why) Should Children Have Rights? A Philosophical Perspective Marieke Janne Hopman Abstract The crc was created bearing in mind that children, in contrast to adult human beings, are in need of special children’s rights. This implies a distinction between the child and the adult, and a different legal position for both. This chapter first discusses the idea of universal childhood underlying the crc with reference to the works of Immanuel Kant and Jean-Jacques Rousseau. Secondly, it discusses whether children can be argued to be rights-bearers, an assumption which seems problematic in the light of legal philosophical theory. Thirdly, the author discusses why adults, as authors of the law, should grant children legal rights, or as she proposes to call them: legal privileges. The chapter concludes with a reflective discussion, placing the main argument outside the theoretical frame and highlighting its emancipatory potential by relating it to power relations between adults and children.

1 Introduction The un Convention on the Rights of the Child (crc) expresses an apparently universal idea regarding children’s rights.1 The idea is that the child ‘for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding’ and be ‘brought up in the spirit of peace, dignity, tolerance, freedom, equality and solidarity’, given that the child ‘by nature of his physical and mental immaturity, needs special safeguards and care, including appropriate legal

1 The crc is ratified by 196 members of the un, only excluding the usa and Somalia. Both countries have expressed the intention to ratify the convention in the future. See Amnesty International ‘Convention on the Rights of the Child: Frequently Asked Questions’, available at http://www.amnestyusa.org/our-work/issues/children-s-rights/convention-on-the-rights -of-the-child-0 (accessed 3 January 2015), AllAfrica ‘Somalia to Ratify un Child Rights Treaty’, available at http://allafrica.com/stories/201311210066.html (accessed 3 January 2015).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_016

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protection, before as well as after birth’, which is the case ultimately because ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’.2 So, quite a few assumptions are made in the preamble to the crc, assumptions that I wish to question. This chapter discusses, first, the idea of universal childhood, analysing the meaning of the concept of childhood as understood by Immanuel Kant and Jean-Jacques Rousseau – the child as pre-moral and pre-social, respectively. Secondly, I ask whether children can be said to have any rights at all. Obviously they do, in the sense that there is a legal instrument stating children’s rights, but if we examine the meaning of ‘having a right’ in the light of Kant’s ideas, this is certainly questionable. It might be more a matter of adults granting children legal privileges. Thirdly, I consider why we, as adults and authors of the law, should grant children rights, or legal privileges. The chapter concludes with a reflective discussion. 2

The Child

In philosophy, much attention has been given historically to the central question of philosophical anthropology, namely, ‘What constitutes a human being?’ However, it seems that the answers to this question are in fact answers to the question, ‘What constitutes the adult human being?’, or even, ‘What constitutes the adult, male human being?’ In discussing this question, an important group of human beings is left out, which currently consists of more than 25 per cent of the world’s population. This is precisely the group I will focus on: children.3 Studies in philosophy, when discussing children, focus on education – on how to raise the child to become the full human being that was formulated as an answer to the first question. The question ‘What constitutes a child?’ has been neglected by philosophers more concerned about providing an account of the (adult) human being they expect or wish everyone to be or become.4 2 Convention on the Rights of the Child, 1989 United Nations General Assembly resolution 44/25 (1989) preamble. 3 In 2013, 26 per cent of the world’s population was younger than 15 years old. See Population Reference Bureau ‘2013 world population data sheet’. 4 This approach is not exclusive to philosophy; similar observations have been made in relation to developmental research, which is used to inform the basic picture of childhood for other academic disciplines. See, for example, Mayall, who argues that developmental psychology is ‘the discipline which has achieved dominance, as providing authoritative and factual knowledge for [child] professionals about children’ (Mayall B ‘The sociology

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The uncertainty about the meaning of the concept of childhood is reflected in international law. In the crc, for example, a child is distinguished from an adult by its age; the Convention concerns every human being below the age of 18 years, ‘unless under the law applicable to the child, majority is attained earlier’ (article 1). The implication is even though the characteristics (in terms of features and needs) of childhood are universal, its duration is not. This is confirmed by research in anthropology. LeVine and New observe that ‘every human society studied recognizes a distinction between children and adults and the age-linked emergence of children’s abilities to learn, work, and participate in community activities as they grow and develop’; however, child-rearing practices vary greatly among different cultures, as does the age-linked picture of the ‘normal child’.5 Philosophers are often concerned with questions of essence, of universal definition. To answer the question of who (should) possess the rights listed in the crc, it is therefore interesting to consider what, according to philosophers, is the essence of childhood. The next section does so by focusing on Kant and Rousseau’s portrayal of the child as not-yet-adult. 2.1 Kant: The Child as Pre-moral To look for a meaning of childhood that can be related to the idea of children’s rights, I first examine Kant’s concept of the adult as a moral actor, a free subject in possession of practical reason by which he or she can align his or her will with the categorical imperative. According to Kant, the human will is part of the faculty of desire, which is determined by the subject’s inner reason – it has no other determining ground, it is practical reason itself.6 Human beings possess a capacity for free choice. This is what makes them different from animals: the animal’s choice is determined by inclination only, while the human’s can be affected, but not determined by, impulses. Choice is therefore not of itself pure but can be expressed as actions by pure will.7 It is reason that has to transcend the animalistic inclinations that are present in every human being, by commanding ‘how we are to act even though no example of this [can] be found’.8

5 6 7 8

of childhood in relation to children’s rights’ (2001) 8 The International Journal of Children’s Rights 244). LeVine RA & New RS Anthropology and Child Development: A Cross-Cultural Reader 3, 5. Kant I Metaphysics of Morals in Gregor MJ (ed) Practical Philosophy: The Cambridge Edition of the Works of Immanuel Kant (1996) 6:213 (hereinafter Metaphysics of Morals). Kant I Metaphysics of Morals 6: 213–14. Kant I Metaphysics of Morals 6: 216.

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The moral law is laid down as a principle of the deduction of freedom as a causality of pure reason, and its existence proves the existence of freedom.9 Moral laws hold as laws only insofar as they can be seen to have an a priori basis and to be necessary.10 So, moral laws need an a priori basis, and without it there is no freedom (because its existence proves the existence of freedom, and the moral law is a principle of the deduction of freedom as a causality of pure reason – without it, there would be no free will and human beings would be animals acting on inclinations only). Freedom and the moral law are mutually dependent. Thus, now we have to look for the a priori moral law and a priori freedom. According to Kant, freedom is innate to human beings; a child is born endowed with freedom.11 Also, human beings are born with moral feeling (‘the susceptibility to feel pleasure or displeasure merely from being aware that our actions are consistent with or contrary to the law of duty’) and a conscience.12 However, virtue (‘moral strength of a human being’s will in fulfilling his duty’) is not innate but must be taught.13 It is based on inner freedom, and it contains ‘a positive command to a human being, namely to bring all his capacities and inclinations under his (reason’s) control and so to rule over himself …’.14 It follows that the will is not pure of itself but that this purity must be developed in human beings. This accords with the idea of children as those becoming human beings, becoming adults, becoming moral actors. Adding to this line of thought, Kant writes that we become immediately conscious of the moral law as soon as we draw up maxims of the will for ourselves.15 Here, there is some room for a developing child to engage in the process of learning to draw up maxims of the will for him- or herself. However, Kant also states quite a few things to the contrary. For example, he asserts that ‘the most common understanding can distinguish without instruction what form in a maxim makes it fit for a giving of universal law and what does not’.16 Therefore, every understanding should be able to apply the categorical imperative without instruction, even the child. Or, then again, ­perhaps 9

10 11 12 13 14 15 16

Kant I Critique of Practical Reason in Gregor MJ (ed) Practical Philosophy: The Cambridge Edition of the Works of Immanuel Kant (1996) 5: 48 (hereinafter Critique of Practical Reason). Kant I Metaphysics of Morals 6: 215. Kant I Metaphysics of Morals 6: 237, 280. Kant I Metaphysics of Morals 6: 399–400. Kant I Metaphysics of Morals 6: 405, 477. Kant I Metaphysics of Morals 6: 408. Kant I Critique of Practical Reason 5: 29–30. Kant I Critique of Practical Reason 5: 27.

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the child’s understanding is not a common understanding, and/or there is no (or only a vague intimation of a) maxim in the child’s mind. Kant also states that the positive concept of freedom is that of the ability of pure reason to be of itself practical. But this is not possible except by the subjection of the maxim of every action to the condition of its qualifying as a universal law.17 If the child’s mind is not yet able to draw up maxims of the will for itself, it cannot subject the maxim of every action to the condition of its qualifying as a universal law. Does this mean that the child is not free? It makes sense to say that the child (or specifically its mind, or reason, or will) is unfree, since there is no room for free will to determine by means of maxims the action of the subject and in this act to overrule inclinations. This is what Kant says too, in a way: ‘[F]reedom, the causality of which is determinable only through the [moral] law, consists just in this: that it restricts all inclinations, and consequently the esteem of the person himself, to the condition of compliance with its pure law’.18 But then, first, how would the unfree child (much like an animal) ever develop into a free moral actor – how would this transition be able to take place? And, secondly, this contradicts Kant’s statement that a person possesses innate freedom from birth. When analysing Kant’s work, it seems that we can think of the child’s innate freedom as a potentiality in every human being, a potentiality to be actualised by practising and developing virtue. Kant suggests that virtue should be taught by way of catechistic moral instruction combined with Socratic dialogue: ‘the advantage of this is […] that it is a cultivation of reason most suited to the capacity of the undeveloped, and so it is the most appropriate way of sharpening the understanding of young people in general …’.19 So, as is apparent from the quote, Kant indeed recognises that there is room for the development of the child’s practical reason. One of the difficulties of this view is that it is unclear whether human beings ever fully realise their freedom. Are they not always developing virtue and thus ever imperfect? If so, then what is the difference between the child and the adult? Kant puts the end of childhood at the point when a person is able to support himself.20 This hardly seems a moral requirement – unless being 17 18 19 20

Kant I Metaphysics of Morals 6: 213–14. Kant I Critique of Practical Reason 5: 78. Kant I Metaphysics of Morals 6: 483–4. Kant I Metaphysics of Morals 6: 282.

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able to support yourself is taken in a broad sense to mean being able to be in the world as a moral agent. Kant argues that every human being is obligated to cultivate moral feeling and virtue.21 So, the human being is always becoming, realising his freedom to a greater degree and making his will ever more pure. However, within the Kantian paradigm, childhood can be understood perhaps as a pre-responsible period, one in which reason can make itself acquainted with the moral law gradually, a period for developing virtue, for practising making value judgments based on the categorical imperative yet being allowed to make mistakes.22 When the person leaves the period of childhood, he can be supposed to have finished this process and thus can be held accountable for his actions as an autonomous, rational being in possession of free will.23 2.2 Rousseau: The Child as Pre-social Although famous for having written one of the foundational works of modernday childhood studies, Rousseau did not directly answer the question about the essence of childhood either; he, too, focuses on how to educate the child in becoming an adult. But when we combine his work Emile, or On Education (1761) with his Discourse on Inequality (1754), an image emerges of the child comparable to natural man as described in the Discourse, with the distinction that the child, contrary to the natural man in a state of nature, finds himself from birth in civil society, where he encounters institutional law. The child therefore needs education to become a good citizen. Following Rousseau’s conception of the child as natural man, we find an image of the child as a pre-social, a-legal yet growing and developing creature. I will elaborate on this below with reference to Rousseau’s two works mentioned above. In Emile, Rousseau, in the process of instructing the teacher, divides childhood into four phases. In each phase before adulthood there is a different educational need. At first sight it seems that for Rousseau the main distinguishing characteristic between the child and adult is reason, given that he refers often to the child as one who has not yet reached ‘the age of reason’.24 The problem we encountered with regard to the transformation of the child’s mind is solved by Rousseau’s saying that ‘childhood is the sleep of reason’.25 However, it is

21 22 23 24 25

Kant I Metaphysics of Morals 6: 399–400, 408. See Schapiro T ‘What is a child?’ (1999) 109 Ethics 732–3. According to Schapiro, children can engage in ‘play’, whereby they ‘“try on” selves to be and worlds to be in’. See also Schapiro T ‘What is a child?’ (1999) 109 Ethics 728–31. For example, Rousseau JJ Emile 21. Rousseau JJ Emile 80.

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clear when reading Emile that Rousseau is inconsistent in attributing reason to children. He admits to this in a footnote: Sometimes I say children are incapable of reasoning. Sometimes I say they reason cleverly. I must admit that my words are often contradictory but I do not think there is any contradiction in my ideas.26 More importantly, the child is non-social and therefore natural and good. In this sense the child and the natural man (savage) in the state of nature are alike. In his Discourse on Inequality, Rousseau describes the savage who lives in a state of nature. Existing in an unsocial condition (because he lives alone), he has no knowledge of good and evil,27 lacks reason in general,28 and his desires do not exceed the desire for self-preservation.29 Civilised man, on the other hand, finds himself in society, where his desires exceed his power to acquire the things he desires and therefore lead to unhappiness.30 In the savage we find an embodiment of the pure soul. The child, in its turn, is a pure soul born in the unnatural condition of civil society. Because of this condition, the child needs education. There is no escaping this condition of society, because men left the state of nature and have thereby compelled others to do the same.31 The child cannot stay pure and natural, since ‘under existing conditions a man left to himself from birth would be more of a monster than the rest’.32 Rousseau writes that Émile is no savage to be banished to the desert, he is a savage who has to live in the town. He must know how to get his living in a town, how to use its inhabitants, and how to live among them, if not of them.33 So, the entire goal of Emile as a teacher’s guide is to enable the human being to become as pure a soul as possible in civil society, even at adult age, to ‘raise him above prejudice and to base his judgments on the true relations of things’, so 26 27 28 29 30 31 32 33

Rousseau JJ Emile 81. Rousseau JJ Discourse on Inequality 128–30. Rousseau JJ Discourse on Inequality 137. Rousseau JJ Discourse on Inequality in Masters R (ed) The First and Second Discourses by Jean-Jacques Rousseau (1964) 137, 138 (hereafter Discourse on Inequality). Rousseau JJ Discourse on Inequality 146, 156, Rousseau JJ Emile 56. Rousseau JJ Emile 168. Rousseau JJ Emile 13. Rousseau JJ Emile 179.

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that ‘one day the child may judge rightly of good and evil in human society’.34 The surest way to do this, according to Rousseau, is ‘to put him in the place of a solitary man, and to judge all things as they would be judged by such a man in relation to their own utility’.35 Apart from the conditions they find themselves in, there are further differences between the child and the savage.36 The freedom of the child is different from the freedom of the savage. First, the child is weaker than the (adult)37 savage; therefore the child is not self-sufficient, and this compromises his liberty whether in a state of nature or in society. The child’s liberty is an ‘imperfect liberty, like that enjoyed by men in social life’,38 while the savage is completely free.39 Secondly, the savage has no curiosity, whereas the child does.40 The savage, on the other hand, possesses a natural and innate capacity for pity, which according to Rousseau precedes reason41 and is a capacity the child develops only in the fourth phase of childhood. Although both the child and the savage are naturally good,42 this ‘goodness’ seems to derive from their lack of ethical awareness. Neither of them has ethical knowledge and hence they are innocent – there is no morality in their actions.43 This lack of ethical knowledge and of morality in action makes the child in society unfit for the moral order of society.44 Until the age of 16, the child is unable to understand the law, because ‘the love of others is the source of human justice’ and the child does not yet feel this love.45 Consequently, the child is not subject to duty.46 It is during the third phase of childhood, when the child starts to develop reason, that the savage and the child seem to part ways. For the savage there 34 35 36

37

38 39 40 41 42 43 44 45 46

Rousseau JJ Emile 165. Rousseau JJ Emile 159. Here it has to be remarked that obviously ‘child’ and ‘savage’ are not mutually exclusive concepts. Some comments have been added on the savage being an adult – I hope to distinguish these terms clearly. The savage as described by Rousseau in the Discourse is assumed to be an adult: first, because the description does not seem to match children’s capacities, and, secondly, because in Emile Rousseau remarks that ‘[e]ven in a state of nature children only enjoy an imperfect liberty’ (57). Rousseau JJ Emile 57. Rousseau JJ Discourse on Inequality 164–5. Rousseau JJ Emile 179. Rousseau JJ Discourse on Inequality 9: 130. Rousseau JJ Discourse on Inequality 193, Rousseau JJ Emile 11: 195. Rousseau JJ Discourse on Inequality 128, Rousseau JJ Emile 40–1: 191, 195. Rousseau JJ Emile 152. Rousseau JJ Emile 210. Rousseau JJ Emile 312.

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is no education and no improvement, so according to Rousseau ‘the species [grows] old, while the individual still remain[s] in a state of childhood’.47 During the fourth phase of childhood, then, the child gains ethical knowledge and understanding as a precondition for living in civil society. The last phase of childhood is a time of erring, the time when the child practices and learns how to live in social reality, the time when he learns the law, that is, the law of human civil society.48 He becomes a full citizen only then as an adult. 3

Children’s Rights?

Both the Kantian and Rousseauian analyses of the essence of childhood lead to questions as to whether children can be considered as rights-bearers. Under both analyses it is hard to see how a pre-moral, pre-social child can bear such a thing as a universal right, as it cannot yet rule itself and does not understand laws at the level of society. According to the crc, there is a twofold reason for international children’s rights as laws: first, because the child, a mentally and physically immature being, needs special safeguards and care, and, secondly, because this contributes to freedom, justice and peace in the world. The idea is ratified by all signatory parties.49 If we are to conclude, for the time being, that there is a universal understanding of the concept of childhood, then the question is: What is it about children that makes them eligible for special rights, ones different from adult’s rights? There must be something inherent in the essence of the (universal) child that entitles them to special rights. What is it? First, we have to understand that the idea of children’s rights starts with an exclusion. Since the 1948 Universal Declaration of Human Rights, there have been rights for all human beings. But these rights are not all applicable to children. If we look at article 1 of the Declaration, it states: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’. The second article states that everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind. But, of course, there is a distinction with regard to certain of these rights and freedoms, one based (legally) on age. For example, article 16 states that

47 48 49

Rousseau JJ Discourse on Inequality 137. Rousseau JJ Emile 223–4. See footnote 1.

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[m]en and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. So, the child, who is not ‘of full age’, does not have this right and is therefore not ‘free and equal in rights’ relative to the adult. The same may be the case, depending on national law, for the right to own property (art. 17), the right to take part in the government of his country (art. 21.1) and the right to work (art. 23). On the other hand, article 7 states that ‘[a]ll are equal before the law and are entitled without any discrimination to equal protection for the law’ – in fact, in most countries children are protected more extensively by the law than adults and hence adults and children are not equal before the law in this respect either. Secondly, we have to understand what we mean by ‘a right’. According to Kant, a right (1) has to do with the external and practical relation of one person to another; (2) signifies a relation to the other’s choice; and (3) is a reciprocal relation of choice, of which only the form of choice is in question, which is regarded as free – the question is whether the action of one can be united with the freedom of the other in accordance with a universal law. As he declares, ‘Right is therefore the sum of the conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom.’50 Regarding children’s rights, Kant observes that children have an innate right to care by their parents until they are able to look after themselves. This parental obligation follows from the act of procreation by which parents have brought a person in the world without its consent.51 Therefore parents need to 50 51

Kant I Metaphysics of Morals 6: 230. Schapiro in her 1999 article notes on this topic that ‘Kant explicitly maintains not only that we can cultivate our natural and moral capacities but also that we have a duty to do so. However, he denies that we have a corresponding duty to cultivate perfection in others. […] Now if children are simply adults in a less cultivated form, it would seem to follow that while children are indeed obligated to cultivate their own perfection, adults are not obligated to cultivate perfection in them’ (Schapiro T ‘What Is a Child?’ (1999) 109 Ethics 724). She takes this from Kant I Metaphysics of Morals, the Doctrine of Virtue (6: 386). However, it seems there is a distinction between cultivating perfection in others, which according to Kant is impossible, and cultivating ‘natural and moral capacities’. According to Kant, the latter can and must be done by parents. He states explicitly in the Metaphysics of Morals, ‘From this duty [of the parent to preserve and care for its offspring] there must necessarily also arise the right of parents to manage and develop the child, as long

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make the child content with his condition so far as they can. They cannot destroy their child as if he were something they had made (since a being endowed with freedom cannot be a product of this kind) or as if he were their property […]52 This again seems contradictory: how can the parents have a reciprocal relation of choice with this form of choice regarded as free, when the choice of the child cannot be understood as free? In some instances it might be the case that the right of the child to be cared for by its parents results in the parent specifically not uniting his action with the freedom of the child but instead restricting the freedom of the child (for example, think of a parent who prohibits the toddler from entering a lake). But then if the child does not stand in this reciprocal relation of choice to the adult, how can a child be understood to have rights at all? It is precisely the paternalistic legal attitude towards children that makes it hard to see them as rights-bearers. This is because adults impose rights on children, leaving out completely the (potentially free) choice of the child. Children can in no way be understood to be the authors of their own laws (since they are not allowed to vote). In ‘Toward perpetual peace’, Kant defines external legal freedom as follows: [I]t is the right through which I require not to obey any external laws except those to which I could have given my consent. In exactly the same way, external (legal) equality in a state is that relation of the subjects in consequence of which no individual can legally bind or oblige another to anything, without at the same time submitting himself to the law which ensures that he can, in his turn, be bound and obliged in like manner by this other.53 It is clear we cannot understand children’s rights in the sense of the intersubjective, reciprocal granting and taking a certain right, in that the child is always

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as he has not yet mastered the use of his members or of his understanding: the right not only to feed and care for him but to educate him, to develop him both pragmatically, so that in the future he can look after himself and make his way in life, and morally.’ Kant I Metaphysics of Morals 6: 281; emphasis in original. Kant I Metaphysics of Morals 6: 280. Kant I ‘Toward perpetual peace’ in Guyer P & Woods AW (eds) Practical Philosophy: The Cambridge Edition of the Works of Immanuel Kant (1996) 120 fn. (hereinafter ‘Toward perpetual peace’).

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legally bound by external laws to which he cannot be understood to have given his consent. Children’s rights are imposed forcibly. Even if this is done mindful of what adults regard as being in the best interest of the child, it cannot be called ‘the interest of the child’ since the child (particularly the young child) is not asked to express its interest54 – and quite often it might be contrary to the direct interest of the child (do children really want the obligation to go to school?). In some cases it might even be that the paternalistic nature of this act of imposing rights actually causes resistance on the part of the child – especially in late childhood, when the child is in the process of developing his capacity for free choice but this capacity is not yet recognised by adults55 (this is the essence of the parent–child battle of adolescence). Obviously, if children are understood, as Rousseau argues, as not yet participating in civil society, this raises all kinds of problems for the notion of children’s rights. Because they are not yet part of civil society even though they find themselves in society, are they nevertheless part of the legal order? Can we understand children to have rights in this sense? According to Lindahl, ‘self-identity’ is what applies when an agent at a given point in time actively endorses or owns the claims and attitudes he or she expressed as an agent at an earlier point.56 For example, I told you last month that I feel all children should have the right to go to school. I own this claim. This is precisely what we cannot say of the (young) child: since childhood is a period of development and change, the child’s claims and attitudes change all the time. In this sense, the child can be said not to have a self-identity yet, and therefore an argument could be made that children are not responsible for their past actions. Lindahl applies this notion of self-identity at the collective level, arguing that ‘integrated collectives display self-identity in the form of inter-temporal 54 55

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Cf. Mayall B ‘The sociology of childhood in relation to children’s rights’ (2001) 8 The International Journal of Children’s Rights 243. The capacity of the child to make choices, albeit limited, is recognised in the crc, where it is formalised in the right to participation. According to article 12.1, ‘State 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 due weight in accordance with the age and maturity of the child.’ This principle is clearly in line with the Kantian idea of the child’s developing freedom and related capacity to self-legislate. It is clear, too, that this capacity is necessarily limited, as it is the adult who decides whether the child ‘is capable of forming his or her own views’, and it is the adult who decides what (due) weight is given to these views. Lindahl H Fault Lines of Globalization: Legal Order and the Politics of A-Legality (2013), discussing Ricoeur (1992) and Pettit (2001).

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commitment’.57 This is why a law created at point A in time still has validity at point B: the collective is capable of sticking to its commitment in the past, in that it understands ‘us’, as a collective, to be the same at point A as at point B. This collective sameness manifests itself ‘in the form of mutual normative expectations articulated and actualized in joint action under law’.58 Again, because children lack this form of self-identity, in both the first-person singular and first-person plural, they cannot be understood to take part in a legal order, articulating mutual normative expectations. Perhaps we are wrong in calling these agreements ‘children’s rights’ and should rather call them ‘children’s legal privileges’ – the legal privilege to go to school, the legal privilege to be supported by parents, the legal privilege to be protected by the government, the legal privilege of the child to receive a name and a nationality. Children are entitled to these not because of an inherent freedom or a reciprocal relation of choice towards others; instead, autonomous adults, in exercising their free, practical will in an act of public will (which excludes children’s will), choose to give these legal privileges to all children on an international legal level. Conversely, this agreement places a duty on parents, all adults and, ultimately, the government to guarantee these legal privileges. In addition, there are certain rights that children lack because they are children (that is, persons who have not yet sufficiently realised their freedom), such as the right to vote and the right to choose to become a combatant. 4

Why Children Should Have Rights (or Legal Privileges)59

As mentioned previously, there are two reasons for this act of public will, as described in the crc: first, because the child, a mentally and physically immature being, needs special safeguards and care, and, secondly, because it contributes to freedom, justice and peace in the world. I consider children’s rights not as innate rights, since, as explained in Section 3, children cannot be regarded as natural rights-bearers. Children’s rights are instead social facts. We, adults, decide whether we want to grant children

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Lindahl H Fault Lines of Globalization: Legal Order and the Politics of A-Legality (2013) 83. Lindahl H Fault Lines of Globalization: Legal Order and the Politics of A-Legality (2013) 84. Throughout this chapter, reference is made to children’s rights rather than children’s legal privileges, although, as has been argued, the latter would appear to be a more correct term.

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rights, in the same way we decide to form nations, governments and schools.60 It is a joint action of ‘we together’, as adults. If we feel like it, we might decide to give children rights – or not. Why should we do this? 4.1 Essence of Childhood: Need for Special Safeguards and Care Tamara Schapiro maintains that it is in virtue of children’s undeveloped condition that we feel we have special obligations to them, obligations which are of a more paternalistic nature than are our obligations to adults. These special obligations to children include duties to protect, nurture, discipline, and educate them. They are paternalistic in nature because we feel bound to fulfil them regardless of whether the children in question consent to be protected, nurtured, disciplined and educated.61 She asks whether there can be a justification for this, specifically in the context of Kant’s theory according to which ‘each person is a sovereign authority whose consent is not to be bypassed’.62 Schapiro relates the becoming of the child to undeveloped (and therefore a lack of) agency, in comparison to the adult.63 According to Kant, parents have a duty to care for their children until they are able to look after themselves, because by the act of procreation the parents have brought a person into the world without his or her consent.64 While this may be true, children’s legal rights go beyond parental obligation. As a community of free, autonomous beings, all members of that community, by means of granting children legal rights, including the right to care and protection, take on an obligation towards children – even those adults who are not parents and never will be. So, the reasons for these rights go beyond an initial responsibility for life. According to the preamble of the crc, the essential, universal character of childhood involves the fact that children are developing into adults. During childhood, they need care and protection because they are not yet able to survive without it. This is particularly true of the first stage of development. 60 61 62 63 64

Cf. Darbyshire P et al. ‘Multiple methods in qualitative research with children: More insight or just more?’ (2005) 5(4) Qualitative Research 419. Schapiro T ‘What Is a Child?’ (1999) 109 Ethics 716. Schapiro T ‘What Is a Child?’ (1999) 109 Ethics 715. Schapiro T ‘What Is a Child?’ (1999) 109 Ethics 718. Kant I Metaphysics of Morals 6: 280.

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The child hence needs different forms of guidance, depending on the stage of development. As mentioned earlier, in a Kantian moral sense, childhood can be thought of as a pre-responsible period in which reason can gradually make itself acquainted with the moral law, a period in which virtue is cultivated in the child and in which the child practises making value judgments while being allowed to make mistakes. As such, there is a need for (legal) protection – children cannot be held fully responsible for their immoral actions since these are not yet the consequence of free choice. Furthermore, children’s legal privileges are necessary because the process of guidance, care and protection does not always happen by itself. As Freeman observes, ‘Rights kick in when other values […] fail. People are likely to claim their rights when their enjoyment of the objects of those rights is threatened.’65 In other words, children need legal rights because their process of development is sometimes threatened by a lack of protection. 4.2 Incorporating Children into the Adult Legal System Nevertheless, we may still ask why we would want children to survive and to develop. From a legal perspective, we can grant that the latter is an existing norm which has been translated into law. The problem with all law relating to children is that, borrowing the terminology of Lindahl (2013), all action by children can be said in some sense to be a-legal. Lindahl gives an example of a shop, understood as an ‘ought-place’ where particular people ought (positively and negatively) to do particular things in a particular space at a particular time.66 To qualify an act as illegal, one identifies an action as not legal in ‘our legal order’. A-legality is then defined as ‘behaviour that calls into question the distinction itself between legality and illegality as drawn by a legal order in a given situation’.67 I would argue that every action by children, especially young children whose acts do not yet fall under criminal liability, are a-legal. With regard to the example of the shop as an ought-place, the child who sees some candy he or she likes might pick it up and start eating it in the shop, without being aware he or she is actually supposed to stand in a queue with the candy, pay for it and then eat it. Without being aware of the shop as an ought-place, the child’s behaviour in this sense cannot be said to be illegal. One could argue that all actions by young children are necessarily legal, because of the lack of criminal liability. 65 66 67

Freeman M Human Rights (2002) 62. Lindahl H Fault Lines of Globalization: Legal Order and the Politics of A-Legality (2013) 18–22. Lindahl H Fault Lines of Globalization: Legal Order and the Politics of A-Legality (2013) 30–1.

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But then stealing is not quite legal as an act, not even if done by a child. In this act, the child is neither complying with a law or norm, nor violating it. Clearly, this qualifies as a-legality, as behaviour that calls into question the distinction between legality and illegality. In the same vein of thought, the child cannot question the behaviour of the other in relation to (il)legality. It has not yet mastered legal norms – or even norms in general. As Lindahl writes, ‘[E]ngaging in legal behaviour from the first-person singular perspective of a legal actor, i.e. an actor whose behaviour is legally coordinated with that of others, requires being able to take up the first-person plural perspective of a “we”’.68 As has been argued by Rousseau, the child cannot take up this perspective of the first-person plural with regard to legality and morality. Therefore, it cannot engage in legal behaviour; it cannot distinguish between legal and illegal behaviour – it cannot even distinguish moral and immoral behaviour. Suppose a young child is sexually abused by a parent. The child does not understand this behaviour to be illegal or even immoral.69 The child in this respect needs the adult, any adult, to point out that something is illegal and immoral. This is why they need legal privileges; children cannot be understood to be legal actors in a legal order. Indeed, children’s actions and perspective constantly undermine the existing legal order by putting in question the boundaries between legal and illegal behaviour. Adults want to impose this order on children because it is their preferred and self-created order and they cannot allow their children to be (completely) excluded from it.70 Since the child is in the process of development, during this period they need to learn how to fit into the legal order. All children’s rights that can be found in the crc are involved in attaining this goal. The Convention states that ‘in all actions concerning children […] the best interests of the child shall be a primary consideration’ (art. 3.1). But this is untrue; the interests of the child would be to eat the candy in the shop. It is in our best interest, as adults, to gradually integrate the child into our legal order.71 Perhaps in the end this can be argued to be in the best interest of the child too – because of his future situation of being an adult and having to 68 69

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Lindahl H Fault Lines of Globalization: Legal Order and the Politics of A-Legality (2013) 81. Here the young child is used as an example to make the point particularly clear. However, it is less true for older children – during the period of childhood they start developing ideas about morality and legality, although as children they are not yet allowed to participate in the creation of the legal order. Cf. Jenks C Childhood (1996) 7–9. Cf. Fortin, who argues that ‘many theorists see little need to rule out paternalistic interventions to restrict the actions of adults on children; indeed they consider them justified by reference to the rights of those constrained. On this basis, it is right to restrain

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conform to the existing legal and social order.72 But in that case the legal order is posited as an opposition to the individual particular will of this hypothetical future adult, and in that situation this adult cannot understand this legal order as his own, with him or her taking up the first-person plural perspective. In this sense the child, and possibly the future adult, are both unfree. As Van Roermund notes, ‘[W]hat constitutes freedom, first and foremost, is the possibility, for a people P, to act in pursuit of what it determines as its own interests, not the condition that the interests of its rulers are the same as the interests of its ruled subjects.’73 It seems that we think a legal order has to be imposed on a child so that he or she, as an adult, may adopt and internalise the first-person plural perspective in society and thereby fit into the social and legal order. In so doing, the child may even come falsely to understand him- or herself as the author of (the content of) that order and this external legal order as something to which he or she could have consented. If so, then how is any legal actor ever truly free? And if, as Van Roermund writes in the same article, formulating the Reflexivity Thesis as an interpretation of Rousseau, ‘both the positivity and the validity of law lie with its legislators (the rulers) ruling over themselves’, how can we ever understand any law to be positive and valid, seeing that we all enter this order from childhood?74 4.3 Towards a Kingdom of Ends Kant’s notion of perpetual peace and a kingdom of ends might be the ultimate telos of children’s rights. In a way it is a reason stated in the crc when it is argued that children’s rights ‘contribute to freedom, justice and peace in the world’. Kant describes the virtuous development of human beings as follows: first, human beings find themselves in a state of unsocial sociability where they are inclined to associate themselves with others and at the same time wish to isolate themselves.75 This situation pushes human beings into the right moral direction (in terms of behaviour). They develop skills for acting morally, such as self-discipline; they learn to love to act morally and find they have a duty to

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or require activity simply because this will better promote that which the individual is interested in’ (Fortin J Children’s Rights and the Developing Law (2009) 22). See, for example, Haugaard M ‘Power and social criticism: Reflections on power, domination and legitimacy’ (2010) 11 Critical Horizons 51, 58. Van Roermund GCGJ ‘First-person plural legislature: Political reflexivity and representation’ (2003) 6 3 Philosophical Explorations 237. This seems to come down to Rousseau’s famous paradox that, in political society, ‘man is born free, and everywhere he is in chains’ (The Social Contract). Kant I Perpetual Peace fourth thesis.

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familiarise themselves actively with the suffering of others elsewhere in the world and to extend their beneficence to them if necessary.76 Eventually, the world in which all people act morally is a world in which all people are happy.77 In his Groundwork, Kant describes this situation as a kingdom of ends, adding that this is only an ideal: The concept of every rational being as one who must regard himself as making universal law by all the maxims of his will, and must seek to judge himself and his actions from this point of view, leads to a closely connected and very fruitful concept – namely, that of a kingdom of ends. I understand by a “kingdom” a systematic union of different rational beings under common laws. Now since laws determine ends as regards their universal validity, we shall be able – if we abstract from the personal differences between rational beings, and also from all the content of their private ends – to conceive a whole of all ends in systematic conjunction […] Since these laws are directed precisely to the relation of such beings to one another as ends and means, this kingdom can be called a kingdom of ends (which is admittedly only an Ideal).78 So, for Kant, history is a process of moral progress.79 I want to take this idea one step further and point out that in the kingdom of ends, because all human beings have developed their virtue to the fullest, gaining complete knowledge of the Good, there is no need for laws. The legal order ceases to exist because the ‘ought’ has become the immediate ‘is’. Even if Kant is pessimistic about the possibility of the actualisation of such a kingdom of ends, it is necessarily something that we as human beings should strive for. It is what the ‘ought’ of the current law is directed at, a situation of ultimate justice. This is the answer to the question about the telos of practical reason, as concerns law. How we raise our children should be directed by these considerations. If we raise our children in the best manner possible – they are well-educated, are given the opportunity to practise moral reasoning, to apply the categorical imperative, 76 77 78 79

Kleingeld P Kant and Cosmopolitanism: The Philosophical Ideal of World Citizenship (2011) 167–8. Kleingeld P Kant and Cosmopolitanism: The Philosophical Ideal of World Citizenship (2011) 162. I Kant Groundwork in Guyer P & Woods AW (eds) Practical Philosophy: The Cambridge Edition of the Works of Immanuel Kant (1996) 100–10. Kleingeld P Kant and Cosmopolitanism: The Philosophical Ideal of World Citizenship (2011) 173.

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to develop their level of thinking, to gain knowledge, to become aware of social relations and position themselves within the community – then the kingdom of ends may be only one generation away. 5 Conclusion At first sight, it may seem that the point of this chapter is mainly a theoretical, philosophical one, given that it argues that when considering Kantian and Rousseauian notions of childhood, freedom, social relations and legal rights, we have to conclude that, within this framework, children cannot be said to have rights. However, there is a point to this chapter that goes beyond the philosophical and theoretical discussion. Finding that children’s rights can be better understood as children’s adultinitiated legal privileges seems to contradict most of the recent literature on children’s rights, which often takes the view that the child is not only a becoming-adult but a person and social actor.80 The finding, that is to say, seems to fly in the face every child-liberationist, ngo worker, lawyer, and so on arguing for child participation. But this is not necessarily the case. To change the socio-legal position of the child, we first have to understand this position thoroughly, including its power relations. I fear that the recent emphasis on children’s capabilities, however interesting and necessary, runs the risk of overlooking the existing power inequality between adult and child, especially when it comes to legal issues. As Smith argues, ‘Discourses of childhood can be deployed in ways which simultaneously obscure and reinforce unequal relations of power such as those based on class, race or gender.’81 This is the risk, too, of emphasising children’s rights as innate rights. In the discussion on children’s rights, children are often grouped with women and other minority groups struggling for the recognition of their rights.82 80

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See, for example, Alderson P Young Children’s Rights: Exploring Beliefs (2005) 209; Christensen P & James A (eds) Research with Children: Perspectives and Practices (2008) 5; Mullender A et al. Children’s Perspectives on Domestic Violence (2002) 3, and many others. Smith K ‘Introducing governable subjects: Images of childhood old and new’ (2012) 19(24) Childhood 35. See, for example, Mayall B ‘The sociology of childhood in relation to children’s rights’ (2001) 8 The International Journal of Children’s Rights 243; Liebel M ‘Paths to participatory autonomy: The meanings of work for children in Germany’ 14 2 Childhood 260; Hendrik H ‘The Child as a social actor in historical sources: Problems of identification and interpretation’ in Christensen P & James A (eds) Research With Children: Perspectives and Practices (2008) 40.

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It is tempting to see children as being equal in fact to adults but disempowered by them, since most of us oppose the immorality of inequality. In regard, Alderson observes that [c]hildren have more similarities with adults than differences from them […] Changes in thinking and expression vary throughout life, especially in the early years, but these are perhaps better understood as changes of degree, rather than of kind. People come to think in more complicated ways, but not in entirely different ways. By five years, children have the kinds of intelligence – such as about self and others, language, science, technology and the arts – which last a lifetime.83 In this chapter I have argued that there is in fact an essential difference between the child and the adult, which is reaffirmed by the crc. As remarked by Rutter and Rutter, ‘[n]o amount of training will cause, say, a four-month-old to walk or talk, or a six-year-old to learn differential calculus’.84 The crucial difference here between women’s struggle for equal rights and the child’s unequal relation to the adult is that women will never become men, whereas all children will become adults.85 The current discussion on child liberationism, child participation and the like may obscure the reality that, as I have argued, ultimately the law is decided over children by adults. This is not a normative claim; it is simply a statement of fact about the contemporary socio-legal reality. And perhaps the situation is not necessarily a bad thing. When we recognise that ‘children’s rights’ are not natural or God-given principles, that they are not based on a choice of the subject who possesses external legal freedom, but that ‘children’s rights’ are adult-initiated social conventions, then – when this adult power has been made explicit – ‘we’ realise perhaps that we have an enormously powerful instrument in our hands. When we, as adults, agree to render children specific 83 84 85

Alderson P Young Children’s Rights: Exploring Beliefs (2005) 209. Rutter M & Rutter M (1993), as quoted by Fortin J Children’s Rights and the Developing Law (2009) 72. See also Woodhouse, who argues that ‘children are marginalized or even damaged by a system that claims to serve them but in which they are powerless and voiceless’. She argues that her proposed generist perspective ‘would not simply substitute children for adults as autonomous rights-bearers in an adversarial system. The fact remains that most children’s law involves adults acting on behalf of children. Children do not start out as autonomous beings; they grow into autonomy’ (Woodhouse BB ‘Hatching the egg: A childcentered perspective on parent’s rights’ (1993) 14 Cardozo Law Review 1756).

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legal privileges, then it is our responsibility to guarantee the fulfilment of these legal privileges, as it is in our power to do so. Bibliography Books

Alderson P Young Children’s Rights: Exploring Beliefs (2008) London: Jessica Kingsley Publishers. Christensen P & James A (eds) Research with Children: Perspectives and Practices (2008) New York: Routledge. Fortin J Children’s Rights and the Developing Law (2009) Cambridge: Cambridge ­University Press. Freeman M Human Rights (2002) Cambridge: Polity Press. Jenks C Childhood (1996) London: Routledge. Kant I Critique of Practical Reason in Gregor MJ (ed) Practical Philosophy: The Cambridge Edition of the Works of Immanuel Kant (1996) Cambridge: Cambridge University Press. Kant I Metaphysics of Morals in Gregor MJ (ed) Practical Philosophy: The Cambridge Edition of the Works of Immanuel Kant (1996) Cambridge: Cambridge University Press. Kant I ‘Toward perpetual peace’ in Guyer P & Woods AW (eds) Practical Philosophy: The Cambridge Edition of the Works of Immanuel Kant (1996) Cambridge: Cambridge University Press. Kleingeld P Kant and Cosmopolitanism: The Philosophical Ideal of World Citizenship (2011) Cambridge: Cambridge University Press. Mullender A, Hague G, Imam UF, Kelly L, Malos E & Regan L Children’s Perspectives on Domestic Violence (2002) London: SAGE Publications. Levine RA & New RS Anthropology and Child Development: A Cross-Cultural Reader (2008) New Jersey: Wiley-Blackwell. Lindahl H Fault Lines of Globalization: Legal Order and the Politics of A-Legality (2013) Oxford: Oxford University Press. Rousseau JJ Discourse on Inequality in Masters R (ed) The First and Second Discourses by Jean-Jacques Rousseau (1964) New York: St. Martins Press. Rousseau JJ Emile: or On Education in Bloom A Emile: or On Education (1979) New York: Basic Books.

Chapters in Books

Hendrik H ‘The child as a social actor in historical sources: Problems of identification and interpretation’ in Christensen P & James A (eds) Research With Children: Perspectives and Practices (2008) New York: Routledge.

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Journal Articles

Darbyshire P, MacDougall C & Schiller W ‘Multiple methods in qualitative research with children: More insight or just more?’ (2005) 5(4) Qualitative Research. Haugaard M ‘Power and social criticism: Reflections on power, domination and legitimacy’ (2010) 11 Critical Horizons. Liebel M ‘Paths to participatory autonomy: The meanings of work for children in Germany’ 14(2) Childhood. Mayall B ‘The sociology of childhood in relation to children’s rights’ (2001) 8 The International Journal of Children’s Rights. Van Roermund GCGJ ‘First-person plural legislature: Political reflexivity and representation’ (2003) 6(3) Philosophical Explorations. Schapiro T ‘What is a child?’ (1999) 109 Ethics. Smith K ‘Introducing governable subjects: Images of childhood old and new’ (2012) 19(24) Childhood. Woodhouse BB ‘Hatching the egg: A child-centered perspective on parent’s rights’ (1993) 14 Cardozo Law Review.

Treaties and Conventions

Convention on the Rights of the Child, 1989 United Nations General Assembly resolution 44/25 (1989). The Universal Declaration of Human Rights, 1948 United Nations resolution 217 A (III) (1948).

Internet Sources

AllAfrica ‘Somalia to Ratify UN Child Rights Treaty’, available at http://allafrica.com/ stories/201311210066.html (accessed 3 January 2015). Amnesty International ‘Convention on the Rights of the Child: Frequently Asked Questions’, available at http://www.amnestyusa.org/our-work/issues/children-s-rights/ convention-on-the-rights-of-the-child-0 (accessed 3 January 2015). Population Reference Bureau ‘2013 world population data sheet’, available at http:// www.prb.org/pdf13/2013-population-data-sheet_eng.pdf (accessed 3 January 2015).

chapter 16

The Voice of the Child in Juvenile Justice Procedures Stephanie Rap Abstract The adoption of the crc and its subsequent ratification by a significant number of countries can be recognised as a turning point when looking at the rights of children. Children are increasingly seen as rights holders and social actors who are attributed autonomy and agency. Specifically, article 12 of the crc – the right to be heard – gives children the opportunity to exercise their rights. This chapter considers the implementation of the right to be heard in juvenile justice procedures. The implication of article 12 is such that juvenile defendants should be encouraged to give their personal views and that professionals in court should consider these views seriously. Moreover, this right also presupposes that juveniles understand judicial proceedings. Between 2005 and 2012, the cases of 3,019 juvenile defendants were observed in youth courts and other competent administrative bodies in the juvenile justice systems in 11 European countries. This chapter presents the results of this study in the light of different legal traditions (the inquisitorial and adversarial tradition) in Europe. It is concluded that structural differences between systems, such as the legal tradition, have an important influence on the participation of juvenile defendants.

1 Introduction Participation has been a central concept in juvenile justice for the last 20 years. The introduction of the United Nations Standard Minimum Rules on the Administration of Juvenile Justice,1 known as the Beijing Rules, along with the almost universal ratification of the un Convention on the Rights of the Child (crc),2 have made it clear there is a worldwide consensus that the child3 is

1 un Standard Minimum Rules on the Administration of Juvenile Justice (the Beijing Rules), United Nations General Assembly Resolution 40/33 (1985). 2 un Convention on the Rights of the Child, United Nations General Assembly Resolution 44/25 (1989). 3 Where the word ‘child’ is used, it can also be understood to mean ‘juvenile’ or ‘young person’. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_017

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a rights holder and that he4 should have the opportunity be heard in any juvenile justice procedure.5 The participatory rights of children can be seen as the most significant rights in the crc, because they acknowledge children’s growing autonomy.6 Dohrn has even stated that the right to participate is a procedural right in juvenile justice which ensures that the best interests of the child are safeguarded in the procedure.7 According to international children’s rights standards, juvenile defendants should be given the opportunity to participate in juvenile justice procedures. This raises the question of how the right of the child to participate is substantiated in practice. To answer it, it is necessary to study juvenile law in action: the understanding of a juvenile justice system can be greatly enhanced by studying not only the law as it is written but as it is administered in practice.8 This chapter presents the results of an extensive empirical study into the role and participation of juvenile defendants in juvenile justice procedures. Between 2005 and 2012, the cases of 3,019 juvenile defendants were observed in youth courts and other competent administrative bodies9 in the juvenile justice systems of 11 countries by a team of researchers from Utrecht University, including the author, and supervised by Professor Ido Weijers (see Section 3).10 Before turning to the empirical results of the study, this chapter outlines in Section 2 the international children’s rights framework with regard to the 4 5

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8 9

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In this chapter, persons are referred to as ‘he’ or ‘him’ for ease of reference but these ­ sages should be understood to mean ‘she’ and ‘her’ as well. u Van Bueren G The International Law on the Rights of the Child (1995) (hereinafter The International Law); Cantwell N ‘The origins, development and significance of the United Nations Convention on the Rights of the Child’ in Detrick S (ed) The United Nations Convention on the Rights of the Child: A Guide to the ‘Travaux préparatoires’ (1992) 19–30 (hereinafter ‘The origins, development and significance’). Abramson B ‘Juvenile justice: The “unwanted child”. Why the potential of the Convention on the Rights of the Child is not being realised, and what we can do about it’ in Jensen EL & Jepsen J (eds) Juvenile Law Violators, Human Rights, and the Development of New Juvenile Justice Systems (2006) 15–38 (hereinafter ‘Juvenile justice: The “unwanted child”’); Van Bueren G The International Law. Dohrn B ‘Last resort, dignity and re-integration: Infusing “best interests of the child” with substantive and procedural rights in juvenile justice’ in Bruning M & Ruitenberg G (eds) Rechten van het kind in (inter)nationaal perspectief (2005) 90–102. Doob AN & Tonry M ‘Varieties of youth justice’ in Tonry M & Doob AN (eds) Youth Crime and Youth Justice: Comparative and Cross-National Perspectives (2004) 293–347. For the purpose of uniformity, the term youth court is used when referring to ­different types of courts and administrative bodies that are competent to deal with juvenile defendants. See also Rap SE The Participation of Juvenile Defendants in the Youth Court: A Comparative Study of Juvenile Justice Procedures in Europe (2013).

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participation of children in juvenile justice procedures. Section 3 discusses the study’s methodology, after which Section 4 sketches the context in which juvenile justice systems are situated in Europe and explains in more detail the difference between the inquisitorial and the adversarial legal tradition. Section 5 presents the results of the study, and Section 6 makes concluding remarks. 2

Children’s Rights

The concept of participation in juvenile justice procedures emerged for the first time in rule 14.2 of the Beijing Rules. This provides that the proceedings should take place in ‘an atmosphere of understanding, which shall allow the juvenile to participate therein and to express herself or himself freely’. It can be concluded that the right to participate in juvenile justice procedures as laid down in rule 14.2 has served as an example for article 12 of the crc. 2.1 The un Convention on the Rights of the Child The crc is the first international children’s rights instrument in which participatory rights for children are introduced explicitly.11 Moreover, the participatory rights of children are the most significant feature of the crc, because they acknowledge the growing autonomy of children and grant them the opportunity to participate in decisions that immediately affect their lives.12 The right to be heard encompasses ‘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’ (art. 12 (1)). Article 12 places a duty upon the States Parties to the crc to involve children in all matters that affect them.13 According to Abramson,14 one of the most valuable developments stemming from the crc is that the participation of children at all levels of society is promoted by its provisions. Article 12(2) of the crc provides that the child should be given ‘the opportunity to be heard in any judicial and administrative proceedings’. This means that the States Parties should adopt special procedures and guidelines to ensure the participation of juvenile defendants. As a consequence, the right to be heard has important implications for the treatment of juvenile defendants in the youth court. The accused

11 12 13 14

Cantwell N ‘The origins, development and significance’. Van Bueren G The International Law. Van Bueren G The International Law. Abramson B ‘Juvenile justice: The “unwanted child”’.

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child’s procedural capacity to be heard in the proceedings is ensured by this provision.15 Article 40 of the crc contains special provisions for the administration of juvenile justice, which can be seen as serving the participation of juvenile defendants as well. For example, the free assistance of an interpreter if the young person cannot understand or speak the language used (para. 2(b)(vi)) is one of the minimum guarantees for a fair trial listed in this provision. It clearly facilitates participation; slightly less obvious, but also of importance for the child in this regard, is the guarantee of being informed promptly and directly of the charges against him (para. 2(b)(ii)). 2.2 The European Court of Human Rights In the past decades the European Court of Human Rights (hereinafter the Court) has produced some critical jurisprudence regarding the participation of juvenile defendants in criminal proceedings.16 First, the Court delivered important decisions in the Bulger case (1999).17 In this case of two 11-year-old English boys who were prosecuted and convicted in Crown Court, the Court ruled ‘that it is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings’ (para. 84). The Court maintained the view that ‘the formality and ritual of the Crown Court must at times have seemed incomprehensible and intimidating for a child of eleven’ (para. 86) and the defendant(s) had been ‘unable to participate effectively in the criminal proceedings against him and was, in consequence, denied a fair hearing’ (para. 89). The Court decided that the juvenile defendants were denied a fair trial by prosecuting them in an adult criminal court and in public (para. 85). Second, the fact that court procedures should be adapted to the developmental stage of the juvenile defendant was further interpreted by the Court in the 2004 case of S.C. v the United Kingdom.18 In this case of an 11-year-old English defendant indicted to the Crown Court, the Court explained that article 6 echr does not imply that a juvenile defendant should understand every legal 15 16

Van Bueren G The International Law. Cipriani D Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective (2009); Kilkelly U ‘Youth justice and children’s rights: Measuring compliance with international standards’ (2008) 8(3) Youth Justice 187–92. 17 ECtHR T. v the United Kingdom, appl. no. 24724/94, 16 December 1999. 18 ECtHR S.C. v the United Kingdom, appl. no. 60958/00, 15 June 2004.

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detail during a criminal trial (para. 29). The purpose of legal representation is therefore to inform and guide the defendant through the trial. Furthermore, the Court decided that the defendant should have been tried in a specialised court, with adapted procedures which would have had regard for his young age and low level of intellectual maturity (para. 35). Third, more recently, a 15-year-old Turkish youth complained that he had been deprived of a fair trial because he was not able to participate effectively.19 The Court concluded that a ‘lack of legal assistance for most of the proceedings exacerbated the consequences of the applicant’s inability to participate effectively in his trial and infringed his right to due process’ (para. 132). The importance of the presence of a lawyer at a court hearing was emphasised, in that a lawyer could have assisted the defendant in participating more effectively. 2.3 The un Committee on the Rights of the Child The un Committee on the Rights of the Child (hereinafter, crc Committee or Committee) gives specific guidelines on the implementation of articles 12 and 40 of the crc in its General Comments Nos. 1020 and 12.21 The notion that child-centred procedures should be employed in a specialised youth court is further substantiated in these general comments by the Committee. The Committee states explicitly in General Comment No. 10 that ‘the right to be heard is fundamental for a fair trial’ (para. 44). The Committee assumes that if a juvenile can be held accountable for having committed an alleged offence (and therefore can be prosecuted), he should also be capable of participating in criminal proceedings. The procedural capacity of the minor is implied by this assumption. Subsequently, the Committee argues that this may also require that courtroom procedures and practices should be modified, depending on the age and maturity of the child (para. 46). Moreover, the Committee recommends establishing specialised divisions within the police, the courts and the prosecutor’s office, and making specialised legal representation available for children. This means preferably establishing youth courts but, if this is not possible, at least appointing specialised youth court judges (paras. 92–3). In General Comment No. 12, the Committee recommends that every judicial procedure concerning minors should be both ‘accessible and child-appropriate’ (para. 34). The meaning of this notion is further specified by indicating that 19 ECtHR Güveç v Turkey, appl. no. 70337/01, 20 April 2009. 20 un Committee on the Rights of the Child, General Comment No. 10 on children’s rights in juvenile justice (2007). 21 un Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009).

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attention needs to be paid to, for instance, the provision and delivery of child-friendly information, appropriately trained staff, design of courtrooms, clothing of judges and lawyers, sight screens and separate waiting rooms (para. 34). The views of juvenile defendants should be heard in any proceeding – throughout the entire juvenile justice process (paras. 35 and 58) – and this should take place by means of a talk or dialogue rather than a ‘one-sided examination’ (para. 43). The dialogue can best be held in an environment in which the child feels safe and respected, and the States Parties are responsible for creating such a child-appropriate court environment (paras. 26 and 60). Furthermore, the Committee makes a connection between expressing views freely and conducting the hearing behind closed doors. Hearings held in camera should be the rule and exceptions should be very limited (para. 61; see also General Comment No. 10 para. 65). The juvenile defendant should also be properly informed about the outcome of the hearing and the extent to which his views have played a role in the judge’s decision-making. The Committee states that ‘the feedback is a guarantee that the views of the child are not only heard as a formality, but are taken seriously’ (para. 45). 2.4 The Council of Europe’s Guidelines on Child-friendly Justice A final document of importance contains the (legally non-binding) Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice.22 The Guidelines serve the purpose of handing practical tools to the Member States of the Council of Europe to adapt their juvenile justice system to the specific rights and needs of children, and as a consequence make their procedures in the youth court more child-friendly. The Guidelines stipulate several fundamental principles of child-friendly justice procedures, principles derived from existing human rights law and standards and the case law of the European Court of Human Rights. The Guidelines furthermore contain what are called general elements of child-friendly justice. One of these is to be informed and given advice from the first involvement with the juvenile justice system and throughout the justice process (art. 3). Other general elements of child-friendly justice are that children should be heard in closed court sessions and that professionals working with children should be trained in communicating with children of different age groups as well as receive education on children’s rights and needs and regarding proceedings that are adapted to children (arts. 9, 14, 15). With regard to the right to be heard, the Guidelines state it is important to explain the judgment or outcome of the court case to the child, and it is 22

Council of Europe, Committee of Ministers (adopted 17 November 2010) 1098th meeting.

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emphasised that this is of particular importance when the views of the child are not followed in the decision-making (art. 49). Regarding the organisation of the proceedings, it is recommended that children should be dealt with ‘in non-intimidating and child-sensitive settings’ (art. 54); however, no further specification of these terms is given. Moreover, it is recommended that language should be used that children understand (art. 56); that professionals should treat children ‘with respect and sensitivity’ (art. 57); that children should be able to be accompanied by their parents (art. 58); that court sessions are adapted to the ‘child’s pace and attention span’ (art. 61); and that ‘childfriendly court settings may mean that no wigs or gowns or other official uniforms and clothing are worn’ (art. 123). It is also recommended that hearings should not last too long, that regular breaks be scheduled and that distractions should be avoided during the hearing (art. 61). The drafters of the Guidelines conclude by stating that ‘the setting may be relatively formal, but the behaviour of officials should be less formal and, in any case, should be child-friendly’ (art. 123). These recommendations seem to refer mainly to the youth court hearings in adversarial procedural systems, such as England and Wales or Ireland, where trials can be long as a result of the oral presentation of evidence and distractions can occur because it is more common for lawyers and prosecutors to walk in and out of the courtroom frequently when hearings take place. Since the publication of the Guidelines on child-friendly justice, several developments have taken place at the European level to increase child-friendly justice practices. In the 2011 eu Agenda for the Rights of the Child it is set forth that making the justice system in Europe more child-friendly is a key action of the European Commission. Moreover, the Commission states that the use of the Council of Europe Guidelines on child-friendly justice should be promoted and taken into account in future legal instruments.23 In December 2015, the Council of Europe agreed with the European Parliament to adopt a Directive on procedural safeguards for children suspected or accused in criminal proceedings.24 In this eu Directive, adopted in May 2016, it is acknowledged that children should be ‘treated in a manner appropriate to their age, maturity and level of understanding, taking into account any special needs, including any communication difficulties that they may have’ (recital 55). 23

24

European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An eu Agenda for the Rights of the Child (2011). Directive (eu) 2016/800 of the European Parliament and the Council of 11 May 2016 on procedural safeguards for children suspected or accused in criminal proceedings (2016).

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Trials against children should preferably be organised in the absence of the public (recital 56) and children should have the right to be assisted by a lawyer, because they ‘are vulnerable and are not always able to fully understand and follow criminal proceedings’ (recital 25). In the Directive it is stated that children have the right to be present at their court hearing and all necessary measures should be taken to enable them to participate effectively in the trial (art. 16(1)). Furthermore, children have the right to be accompanied by a parent or carer during the court hearing (art. 15(1)). Finally, strong demands are made on the Member States to provide training to judges, prosecutors and lawyers involved in criminal proceedings, in order to raise awareness of the needs of children (art. 20). 3 Methodology The data collection for the empirical part of this study took place by means of studying juvenile law and policy documents and through systematic observations of youth court hearings or their equivalents. Between 2005 and 2012, the cases of 3,019 juvenile defendants were observed in youth courts and other competent administrative bodies in the juvenile justice systems in the 11 countries. The countries involved in this study were Belgium, England and Wales, France, Germany, Greece, Ireland, Italy, the Netherlands, Scotland,25 Spain and Switzerland. They were selected on the basis of purposive sampling (and not with the intention of reaching a statistically representative sample).26 The aim was to select a wide variety of juvenile justice systems in Europe, representing the Anglo-Saxon as well as the continental legal tradition. However, the selection of countries also depended on practical constraints such as limitations in ­language skills and gaining access to court hearings. For these reasons, the Scandinavian countries, for example, were excluded from this study. Table 16.1 presents the countries and cities in which observations took place, along with the total number of observed juvenile defendants per country.27 25

26 27

It should be noted that while England and Wales and Scotland are part of the same nation state, namely the United Kingdom, they do represent separate jurisdictions. Moreover, in this study, the Scottish children’s hearings and criminal court hearings of 16- and 17-year-old defendants are included. The latter hearings took place in youth courts, which existed as pilot projects in two Sheriff courts in the Glasgow area during the time the study was conducted. Boeije H Analysis in Qualitative Research (2010). Rap SE The Participation of Juvenile Defendants.

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Table 16.1 Number of observed juveniles per country

Country

Cities

Belgium

Antwerp / Bruges / Dendermonde / Ghent / Mechelen England & Wales Liverpool / London / Sheffield France Evry / Grenoble / Paris / Toulouse Germany Bergisch-Gladbach / Berlin / Cologne / Munich / Weilheim Greece Athens Ireland Dublin / Limerick / Tallaght Italy Bologna / Rome / Turin Netherlands 16 of 19 districts Scotland Airdrie / Glasgow / Hamilton Spain Albacete / Madrid Switzerland Basel / Fribourg / Glarus / St. Gallen / Zurich Total

Juveniles 115 360 137 134 378 437 71 797 331 171 88 3,019

In this study a distinction was made between two types of settings in which juvenile justice cases can be handled. These are hearings in chambers and hearings in formal courts. In the 11 countries, different types of hearings are held in these settings, including first and subsequent pre-trial (detention) hearings; hearings in which the case is settled before one judge in chambers or in court; trials before one judge or a panel of judges (a full court); and sentencing and sentence review hearings. In total, the number of observed juveniles in chambers was 312 (10 per cent) and the number of juveniles observed in formal court hearings was 2,707 (90 per cent). The much larger number of juveniles observed at a hearing in the youth court results from the fact that in several countries (that is, England and Wales, Greece, Ireland, Italy and Spain) juvenile justice procedures do not take place in chambers at all. The cases that were observed per court were not pre-selected, for instance on thematic grounds, but chosen on the basis of the period in which the observations took place. In each country, contact was sought with courts through contact persons (for example, fellow academics and professionals working in the juvenile justice system). Moreover, the aim in each country was to gain access to a court in a large town (in many cases the country’s capital) as well

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as one in in a smaller town or rural area so as to study regional differences as well.28 The observations were conducted by several researchers, including the author, each of whom mastered the language of the respective country.29 Because a number of researchers participated in the study, a structured observation scheme was used in order to ensure that the same items were observed in every country and for every type of hearing.30 Gaining access to youth court hearings was of special importance, because in most countries these hearings are closed to the public (except for Belgium and the Scottish youth court). In every country, permission to observe youth court hearings was granted by the president of the respective court or head of the juvenile section of the court, as well as the judge hearing the particular case. Moreover, consent was obtained from the juvenile defendant and his parent(s) before the start of every hearing. In case a parent or legal guardian was not present, the legal representative of the young person was asked to give his consent. Juveniles, parents and lawyers were able to object to the presence of a researcher by indicating so to the judge, and in such cases the researcher left the courtroom. Only in a small number of cases did the young person or the judge decide that the researcher could not observe the hearing. Before turning to the discussion of legal traditions in Europe and their impact on the operation of juvenile justice systems, it must be noted that the 11 countries in this study employ different minimum ages of criminal responsibility (macr) and upper age limits of the juvenile justice system. With regard to the minimum age, Greece and Scotland have the lowest age level, set at 8 years. These countries are followed by England and Wales,

28

29

30

Only in Greece and in Scotland (the children’s hearings system) was this aim achieved, and cases were observed in only one site. To overcome the limitation, the results from previous studies were used to complement the study findings. Moreover, in Greece, a larger number of cases were observed in the one site involved in this study. The researchers were educated in different disciplines, namely criminal law, criminology, pedagogical sciences and psychology. They had a common interest in studying juvenile law and juvenile delinquency, and most of them had followed a university minor programme in this field. In Greece, local researchers from the University of Athens conducted the observations. Most researchers conducted observations in more than one court and, in some cases, in more than one country. The observation scheme consisted of the following elements: (1) general information; (2) information – juvenile defendant; (3) people present; (4) explanation – by judge; (5) understanding; (6) content – communication with juvenile defendant; (7) content – communication with parents; (8) moral appeal upon juvenile defendant; (9) judgment.

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France and Switzerland, which have the macr set at 10 years, and Ireland and the Netherlands where it is 12 years. In Germany, Italy and Spain the macr is 14 years, while in Belgium it is 18. Every country involved in this study has an upper age limit of 18, except for Scotland, where in principle young people from the age of 16 are prosecuted in the adult court (s. 42 Criminal Procedure (Scotland) Act, 1995).31 The study also included some cases involving young people who are 18 years or older, such as when the offence was committed before the person turned 18 (for example, in the Netherlands) or when the youth court has jurisdiction over young adults as well (for example, in Germany). 4

Legal Traditions in Europe

From the analysis of international children’s rights law and standards it can be concluded that substantial room for discretion is left for states to determine how specialised laws, procedures, authorities and institutions should be implemented. Some countries have a separate juvenile justice system, with youth courts (resembling the adult criminal court to a greater or lesser extent) in which juvenile defendants are tried, whereas others have a welfare or family law system in which both delinquent and vulnerable children are steered towards protection and intervention.32 To account for the differences in youth court procedures among the 11 countries, it is necessary to sketch the context in which these youth courts or other administrative bodies operate. The main differences concern the fundamental distinction between the inquisitorial and adversarial legal tradition. 4.1 The Inquisitorial and Adversarial Legal Tradition Adversarial procedures are found mainly in the common law countries, where the law originates from English common law; inquisitorial procedures are found for the most part in the civil law countries of continental Europe. It is the case, however, that a sharp distinction no longer exists between the two traditions and that this distinction should be seen as a variation on a continuum rather than as a pure dichotomy.33 31 32 33

For a more elaborate discussion on age limits in juvenile justice, see Cipriani D Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective (2009). Sloth-Nielsen J The Role of International Law in Juvenile Justice Reform in South Africa (unpublished PhD dissertation, University of the Western Cape, 2001). Brants C & Franken S ‘The protection of fundamental human rights in the criminal process: general report’ (2009) 5(2) Utrecht Law Review 7–65 (hereinafter ‘The protection of fundamental human rights’).

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Determining the truth is the overall goal of the criminal trial in both the adversarial and the inquisitorial legal tradition.34 Truth-finding differs, however, between the two traditions. The basic assumption in the inquisitorial tradition is that the state is entrusted with truth-finding. Before a case is brought to court for trial, extensive investigations are carried out by the prosecutor or investigative judge in order to ensure that no innocent person is tried in court. During the investigation by the police, the public prosecutor and, in some countries, the investigative judge, a trial dossier is compiled for presentation to the court. In the inquisitorial tradition the dossier plays a central role and is available to the judge, the prosecutor and the defence. It is not necessary to produce all the evidence in court because it is included in the dossier.35 At the criminal trial the judge has an active truth-finding role, asking the defendant questions and hearing witnesses. The interaction between the judge and the defendant is at the heart of the trial. It is the task of the prosecutor or the investigative judge to represent all interests involved in the case and not only to advocate the state’s case in court. The public prosecutor takes a predominantly impartial stance and is, like the judge, responsible for finding the truth.36 In the adversarial legal tradition the criminal court process revolves around two equal parties, the prosecution and the defence, who are opposed to each other and prepare and present their own case before a passive and impartial judge. Each party presents evidence of their version of the truth to the court, and the interaction between the prosecutor and the defence lawyer dominates the criminal trial. The trial does not take place on the basis of a dossier and, in principle, all the evidence is presented in court. The judge (or jury) does not have any prior knowledge of the case. Each party calls their own witnesses and experts, who can be examined by both parties, to convince the judge of their version of the truth. The emphasis lies on the oral presentation of evidence in court. By means of examination and cross-examination of witnesses, both parties can challenge the presented evidence. It is assumed that when a witness or expert is unreliable or incompetent this will be proved during the cross-examination. The judge’s task is to oversee the entire process, make sure every rule is followed and bring in a verdict of guilty or not guilty. The judge is not involved 34

35 36

Jörg N, Field S & Brants C ‘Are inquisitorial and adversarial systems converging?’ in Fennell P, Harding C, Jörg N & Swart B (eds) Criminal Justice in Europe: A Comparative Study (1995) 41–56. Dammer HR & Fairchild ES with Albanese JS Comparative Criminal Justice Systems 3 ed (2006). Brants C & Franken S ‘The protection of fundamental human rights’.

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in the actual process, but has to guarantee that the trial is held in a fair manner and that the defendant has the same means at his disposal as the prosecutor (that is, equality of arms). The prosecutor must disclose every relevant piece of evidence to the defendant and the defence can challenge the evidence in court.37 The following sections present some striking examples of the inquisitorial and the adversarial tradition in juvenile justice. 4.2 Juvenile Justice Practices in Europe In Europe, a strong example of the inquisitorial tradition can be found in Switzerland. The Swiss juvenile justice system has distinct inquisitorial procedures. A juvenile case can be handled by the prosecutor (the Jugendanwalt model in the German-speaking part of Switzerland) or by a youth court judge (the Jugendrichter model in the other parts of the country).38 Either way, the hearing as a whole revolves around the interaction between the judge and the young person. In the majority of cases there is neither a prosecutor (when the case is handled by a youth court judge) nor a defence lawyer present at the hearing.39 The judge or prosecutor is involved with truth-finding, and in many cases the judge performs the task of the prosecutor both in the preliminary and trial phase of the process and the same person is in charge in every stage of the justice process. Only in more serious cases does a prosecutor investigate the case and bring it before a court. During the hearing before the prosecutor or judge, the personal circumstances of the defendant are considered extensively to determine which sanction and/or measure is in the best interests of the child.40 It can be concluded, however, that procedural safeguards for a fair trial (as enshrined, for example, in article 40(2) crc) are not abided by to the 37

38 39

40

Keulen BF, Elzinga HK, Kwakman NJM & Nijboer JA Het deskundigen register in strafzaken. De beoogde werking, mogelijke neveneffecten en risico’s (2010); Van Koppen PJ & Penrod SD (eds) Adversarial versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice Systems (2003). Aebersold P Schweizerisches Jugendstrafrecht (2001). A lawyer is appointed only is specific circumstances: when a detention sentence of more than one month or placement in an institution is ordered; the young person is found to be unable to defend his own interests; the period of pre-trial detention has exceeded 24 hours; the young person is placed in an institution in the preliminary phase of the process; or the young person is tried in court in the presence of a prosecutor (art. 40 JStG; art. 24 JStPO). Weidkuhn U Jugendstrafrecht und Kinderrechte. Betrachtung des Schweizerischen Jugendstrafrechts im Lichte der Internationalen Rechte des Kindes und im Vergleich zu Südafrika (2009).

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fullest extent in Switzerland. The right to an impartial judge is not always guaranteed, and a lawyer is not appointed free of charge in every case. The adversarial legal tradition can be observed in the youth courts in England and Wales, Ireland and Scotland (in the latter country mostly concerning 16- and 17-year-olds). The prosecutor and defence lawyer are the active parties in the criminal process. The judge oversees the presentation of evidence by the defence lawyer and the prosecutor. Moreover, the judge can ask questions to gain more insight into the case. In Ireland the same proceedings are followed in court for minors as for adults in the district court. Plea-bargaining is a common practice in the Anglo-Saxon youth courts. When the defence lawyer and the prosecutor try to settle the case by means of a plea, they discuss with each other how to come to a resolution of the case without the involvement of either the judge or the defendant. When they come to a resolution, it is presented to the judge in court and the case is settled.41 The juvenile defendant is not part of the deliberations in court; he is not invited by the other parties to engage in the conversation, and the judge hardly ever asks the young person a question. The defence lawyer represents the young person in court, which means that the lawyer talks on his behalf to the other professionals. The juvenile defendant is not supposed to contribute to the discussion between the professionals in court.42 A surprising example of employing adversarial procedures on the European continent can be found in Spain. Typically, the Spanish public prosecutor has played a strong role in the criminal process, stronger so than anywhere else in continental Europe. In the post-Franco era, modernisations of the criminal justice system have been largely influenced by the adversarial tradition in the common law countries.43 This implies, for example, that in Spain plea-bargaining is possible for juvenile defendants, which means in turn that the case can be resolved between the prosecutor and the defence without interference by a judge. When a conformidad is reached, the judge gives the sentence immediately without investigating the case further (art. 32/36 lo 5/2000). 41 42

43

Bottoms A & Dignan J ‘Youth justice in Great Britain’ in Tonry M & Doob AN (eds) Youth Crime and Youth Justice: Comparative and Cross-National Perspectives (2004) 21–183. Weijers I & Hokwerda YM ‘Patterns and possibilities for pedagogical communication in juvenile courts: England and Wales and the Netherlands’ in Dünkel F & Drenkhahn K (eds) Youth Violence: New Patterns and Local Responses (2003) 679–90. Pastrana Tinoco A ‘Organes spécialisés et opérateurs judiciaires dans le droit pénal des mineurs espagnol’ in Favier Y & Ferrand F (eds) La justice des mineurs en Europe. Une question de spécialité? (2011) 115–27; De La Cuesta JL ‘The new Spanish penal system on delinquency’ in Jensen EL & Jepsen J (eds) Juvenile Law Violators, Human Rights, and the Development of New Juvenile Justice Systems (2006) 101–13.

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Participation in the Youth Court

In this section the extent to which and manner in which children can participate at youth court hearings in Europe is discussed in more detail. The first subsection focuses on hearing the voice of the child accused of committing a crime, while the second explains the manner in which professionals take into account the age and level of maturity of the child and his understanding of the procedures. 5.1 Hearing the Voice of the Child As has been argued before, it is important for the child to participate in the hearing by presenting his views. Moreover, the professional who hears the views of the young person should show genuine interest in the contributions of the young person. Hearings in which the views of the young person are heard to a large extent take place in, for example, the Scottish children’s hearings system, the Swiss and the French juvenile justice system. The story of the young person and his personal circumstances are at the centre of the hearing, and the judges – or in the case of the Scottish children’s hearings, the panel members – leave a great deal of room to allow the young person to speak. For example, at the French youth court hearing a dialogue between the judge and the young person often takes place. During the hearings in the youth court the judge(s), prosecutor and lawyers wear gowns and have fixed places, and certain rituals and rules observed. However, the young person is given the opportunity to tell his side of the events that led to his appearance in court. In this setting the judge spends much time reviewing the offence and the personal circumstances of the young person.44 Moreover, when a social worker is present he is given the opportunity to give his views on the life of the young person as well. In these countries it was observed that the judge showed a genuine interest in the views of juvenile defendants. Juveniles were encouraged to give their own views and were actively questioned about their personal circumstances. The possibility of imposing welfare measures in criminal cases influences the role of the decision-maker and the topics that are discussed during the hearing. In these hearings the judge, the prosecutor or, in the Scottish case, the panel members, decide, among other things, about whether a measure is n ­ ecessary to prevent the young person from slipping further into recidivism. A welfare approach is prevalent in these countries, and the purpose of the hearing is 44

See also Blatier C ‘Juvenile justice in France: The evolution of sentencing for children and minor delinquents’ (1999) 39(2) British Journal of Criminology 240–52.

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to assess whether an educational or therapeutic measure is necessary to deal with the problems the young person experiences (instead of or alongside a penal sanction). Showing genuine interest in the views of the young person is therefore a rational response by the judge or panel members, because he has to assess, on the basis of inter alia the story of the young person, whether the young person is in need of care or protection. Hence, besides talking about the offence, a substantial amount of time is devoted to the personal circumstances of the young person. At the Scottish children’s hearing, the reason for referral to the panel is largely ignored in the conversation between the young person and the panel members. Truth-finding does not take place and the question concerning guilt or responsibility is not asked. The Greek youth court practice presents an example of how the views of the young person are heard to some extent. The young person, however, is not invited to give his own views on what happened. He is expected only to answer the questions posed by the judge. The judge does not appreciate an independent contribution by the young person to the hearing. Moreover, the average duration of the observed hearings is strikingly short, at only five minutes. In the adversarial legal tradition of the Anglo-Saxon countries, the practice of hearing juvenile defendants in the youth court is markedly distinct from the practices described above. In this tradition the debate between the prosecutor and the defence lawyer lies at the heart of the hearing. During a trial the views of the juvenile defendant hardly play a role. The defendant is only given the opportunity to speak when he is summoned as a witness in the case.45 As a consequence, the young person can only answer the questions posed by his lawyer and by the prosecutor in the cross-examination. Generally he is asked closed-ended questions, to which he can respond simply with a ‘yes’ or ‘no’. Moreover, in other parts of the proceedings the judge only addresses the young person when he requires information from him. But even then, this request for information is mainly directed towards the lawyer representing the young person. Virtually without exception, every juvenile defendant who tries to say something during the trial or other kind of hearing is cut off by the judge.46 In the youth courts in England and Wales, Ireland, Scotland and Spain, showing genuine interest in the views of the young person was far less ­frequently observed. A distinct feature of the Anglo-Saxon youth courts is the distant 45 46

Brants C ‘Comparing criminal process as part of legal culture’ in Nelken D (ed) Comparative Criminal Justice and Globalization (2011) 49–66. See also Kilkelly U ‘Youth courts and children’s rights: The Irish experience’ (2008) 8(1) Youth Justice 39–56.

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attitude of the judge, which is amplified by the formal proceedings and attire of the participants. The judge does not show much interest in the young person, whether by asking questions or through his posture, glance or tone of voice. Generally, the judge only exceptionally displays serious interest in the young person by asking him for his views on the offence or his own personal circumstances. 5.2 The Child’s Understanding In this study it is argued that understanding what is discussed during the hearing and what the consequences are of the judgment arrived at are essential for the young person to give his (informed) views. This section presents the findings regarding the extent to which explanations are given to the young person and the extent to which the judgment and sentence are clarified. With regard to the explanation of procedures and participants and their roles in the youth court, it can be concluded that a clear divide exists between countries in which the youth court procedures are influenced by the adversarial legal tradition and countries in which the inquisitorial legal tradition (or a welfare model) prevails. This study found that the Scottish children’s hearings system and the Swiss hearings are best suited to assisting juveniles understand the court procedures they are undergoing. In these countries substantial attention is paid to giving explanations to the young person during the hearing. For example, in Switzerland when prosecutors handle a case they generally ask the young person if he understands everything that has been discussed, and, because of the informal atmosphere during the hearing, it was observed that young people do not feel restrained in asking questions or in indicating that they do not understand certain matters. Furthermore, lawyers can contribute to giving explanations to young people. Although this might be true, at the hearings in Switzerland and Scotland a lawyer was not present in the majority of cases that were observed. The young person was provided with substantial explanations, so in that regard the presence of a lawyer was not strictly necessary. It is not possible to conclude whether more explanations were provided because a lawyer was absent from the child’s hearing. However, no notable difference was observed in the amount of explanations at the Swiss hearing when a lawyer was present compared to when a lawyer was absent. Social workers play an important role at the hearings, because, along with the judge, they explain to the young person possible sanctions or measures and so contribute to his understanding. In sum, it can be concluded that the informal atmosphere, the slight physical distances, and the lower number of people present at these hearings all contribute to giving explanations.

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At the other extreme, countries can be found in which the youth court procedures show many characteristics of the adversarial legal tradition. At the hearings observed in Ireland, Scotland and Spain, the judge was not involved in giving explanations to the young person of court proceedings. It was observed that when the young person was not properly prepared before the hearing, this led to his confusion and distraction during the hearing. Therefore, it can be concluded that, especially in these countries, the lawyer has an important task in preparing the young person before the hearing and in explaining afterwards what has been decided. At the hearings observed as part of this study, a lawyer was always present. However, it is not clear to what extent lawyers provide the young person with information before and after the hearing. Regarding the clarification of the judgment and sentence, the categorisation of countries is not consistent with the adversarial/inquisitorial divide noted earlier. That is, from the results of this study it can be concluded that the judgment is not necessarily better explained in youth courts that show characteristics of the inquisitorial tradition. Particularly in Ireland and the Southern European countries (France, Greece, Italy, Spain), at the observed hearings no special attention was paid to explaining the judgment and sentence orally at the end of the hearing. In large courts in France, the judgment is pronounced publicly (art. 14 Ordonnance n° 45–174) at the end of the day for every juvenile defendant who has appeared in court on that day. Every defendant, together with his lawyer, parents (and/or other family members) and social worker, waits in the same courtroom until the judge delivers his judgment. Generally, though, the judgments were read out very speedily by the judge and, as a consequence, juveniles found it hard to keep up. Therefore, young people depend on their lawyer for further information and explanations. A lack of time seems to be the most important reason for the judge to omit further explanations and reasons for the judgment and sentence. What is lacking in these countries in general is an explanation to the young person of the extent to which his views played a role in the decision-making and consequently affected the decision that was reached. From the observations it can be concluded that Switzerland and Scotland (that is, the children’s hearings system) are again good examples of making use of this element of the hearing. In the more formal court hearing in Germany, the judgment and sentence are very well clarified and explained to the young person as well. After the judge has issued the judgment in juridical terms, everyone can sit down again and the sentence is explained to the young person in comprehensible terms. Moreover, this part of the hearing is clearly used to give the young person a message to take home about avoiding future delinquent behaviour.

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6 Conclusion Several international children’s rights laws and standards acknowledge the right of the child to be heard in juvenile justice procedures. In the Beijing Rules it is stated for the first time that juvenile justice proceedings should be conducted in an atmosphere of understanding in which juvenile defendants can participate and express their views freely. Article 12 of the crc flows from that, stating that children should have the right to express their views in all matters affecting them and that those views have to be taken seriously. The notion of effective participation has been further defined in the case law of the European Court of Human Rights, which sees the child’s participation in court as a requirement for a fair trial. Recently, the concretisation of the notion of child-friendly justice has given additional impetus to thinking and practice related to the participation of children in juvenile justice procedures. The study described in this chapter researched the participation of young people in juvenile justice procedures in 11 countries in Europe. It can be seen that differences in legal tradition – that is, between the inquisitorial and adversarial traditions – have far-reaching consequences for the possibilities available for children to participate in actual practice in juvenile justice procedures. The first conclusion that can be drawn from this study is that in continental European countries with a clear inquisitorial (and welfare) tradition, the participation of the child is to a large extent in line with the international children’s rights standards. For example, the Scottish children’s hearing sets a good example with respect to hearing the views of children. However, one consequence of this welfare approach is that little attention is paid to the offence and its judicial consequences. In juvenile justice systems that can be typified as more moderately inquisitorial, the question of personal guilt and responsibility receives full attention during the court hearing. Secondly, it can be concluded that in countries with an adversarial tradition, structural obstacles exist to meeting the requirements set by international children’s rights standards. The child is hardly able to give his own views and the procedures are not adapted to the age and level of maturity of the child, which means it is difficult for them to understand what is happening during the court hearing. The question therefore arises: Will an adversarial approach ever be able to meet the requisite standards with regard to participation in juvenile justice procedures?

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Bibliography Books

Aebersold P Schweizerisches Jugendstrafrecht (2001) Bern: Stämpfli Verlag. Allen C, Crow I & Cavadino M Evaluation of the Youth Court Demonstration Project. Home Office Research Study 214 (2000) London: Home Office. Boeije H Analysis in Qualitative Research (2010) London: SAGE. Cipriani D Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective (2009) Farnham/Burlington: Ashgate. Dammer HR & Fairchild ES with Albanese JS Comparative Criminal Justice Systems 3 ed (2006) Belmont: Wadsworth. Keulen BF, Elzinga HK, Kwakman NJM & Nijboer JA Het deskundigen register in strafzaken. De beoogde werking, mogelijke neveneffecten en risico’s (2010) Den Haag: Wetenschappelijk Onderzoek- en Documentatiecentrum (WODC) van het Ministerie van Justitie. Van Bueren G The International Law on the Rights of the Child (1995) Dordrecht/ London: Martinus Nijhoff. Van Koppen PJ & Penrod SD (eds) Adversarial versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice Systems (2003) New York: Kluwer/Plenum. Weidkuhn U Jugendstrafrecht und Kinderrechte. Betrachtung des Schweizerischen Jugendstrafrechts im Lichte der Internationalen Rechte des Kindes und im Vergleich zu Südafrika (2009) Zürich: Schulthess Juristische Medien.

Chapters in Books

Abramson B ‘Juvenile justice: The “unwanted child”. Why the potential of the Convention on the Rights of the Child is not being realised, and what we can do about it’  in  Jensen EL & Jepsen J (eds) Juvenile Law Violators, Human Rights, and the Development of New Juvenile Justice Systems (2006) 15–38 Oxford/Portland: Hart Publishing. Bottoms A & Dignan J ‘Youth justice in Great Britain’ in Tonry M & Doob AN (eds) Youth Crime and Youth Justice: Comparative and Cross-National Perspectives (2004) 21–183 Chicago: University of Chicago Press. Brants C ‘Comparing criminal process as part of legal culture’ in Nelken D (ed) ­Comparative Criminal Justice and Globalization (2011) 49–66 Farnham/Burlington: Ashgate. Cantwell N ‘The origins, development and significance of the United Nations Convention on the Rights of the Child’ in Detrick S (ed) The United Nations Convention on the Rights of the Child: A Guide to the ‘Travaux préparatoires’ (1992) 19–30 Dordrecht: Martinus Nijhoff.

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De La Cuesta JL ‘The new Spanish penal system on delinquency’ in Jensen EL & Jepsen J (eds) Juvenile Law Violators, Human Rights, and the Development of New Juvenile Justice Systems (2006) 101–13 Oxford/Portland: Hart Publishing. Dohrn B ‘Last resort, dignity and re-integration: Infusing “best interests of the child” with substantive and procedural rights in juvenile justice’ in Bruning M & Ruitenberg G (eds) Rechten van het kind in (inter)nationaal perspectief (2005) 90–102 Amsterdam: Uitgeverij SWP. Doob AN & Tonry M ‘Varieties of youth justice’ in Tonry M & Doob AN (eds) Youth Crime and Youth Justice: Comparative and Cross-National Perspectives (2004) 293– 347 Chicago: University of Chicago Press. Jörg N, Field S & Brants C ‘Are inquisitorial and adversarial systems converging?’ in Fennell P, Harding C, Jörg N & Swart B (eds) Criminal Justice in Europe: A Comparative Study (1995) 41–56 Oxford: Clarendon Press. Pastrana Tinoco A ‘Organes spécialisés et opérateurs judiciaires dans le droit pénal des mineurs espagnol’ in Favier Y & Ferrand F (eds) La justice des mineurs en Europe : Une question de spécialité? (2011) 115–27 Bern: Stämpfli Publishing. Weijers I & Hokwerda YM ‘Patterns and possibilities for pedagogical communication in juvenile courts: England and Wales and the Netherlands’ in Dünkel F & Drenkhahn K (eds) Youth Violence: New Patterns and Local Responses (2003) 679–90 Greifswald: Ernst-Moritz-Arndt-Universität.

Articles

Blatier C ‘Juvenile justice in France: The evolution of sentencing for children and minor delinquents’ (1999) 39(2) British Journal of Criminology 240–52. Brants C & Franken S ‘The protection of fundamental human rights in the criminal process: General report’ (2009) 5(2) Utrecht Law Review 7–65. Kilkelly U ‘Youth justice and children’s rights: Measuring compliance with international standards’ (2008) 8(3) Youth Justice 187–92. Kilkelly U ‘Youth courts and children’s rights: The Irish experience’ (2008) 8(1) Youth Justice 39–56.

Theses

Rap SE The Participation of Juvenile Defendants in the Youth Court: A Comparative Study of Juvenile Justice Procedures in Europe (2013) Amsterdam: Pallas Publications. Sloth-Nielsen J The Role of International Law in Juvenile Justice Reform in South Africa (unpublished PhD dissertation, University of the Western Cape, 2001).

Cases

ECtHR, Güveç v Turkey, appl. no. 70337/01, 20 April 2009. ECtHR, T. v the United Kingdom, appl. no. 24724/94, 16 December 1999. ECtHR, S.C. v the United Kingdom, appl. no. 60958/00, 15 June 2004.

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Legislation France

Ordonnance n° 45–174 du 2 février 1945 relative à l’enfance delinquente, 02.02.1945 [Juvenile court instruction].

Spain

Ley Orgánica 5/2000, de 12 de enero, reguladora de la responsabilidad penal de los menores (LO 5/2000) [Juvenile criminal code].

Scotland

Criminal Procedure (Scotland) Act, 1995.

Switzerland

Jugendstrafgesetz (JStG) [Juvenile court code]. Jugendstrafprozessordnung (JStPO) [Juvenile criminal procedural code].

Treaties and Conventions

UN Convention on the Rights of the Child, United Nations General Assembly Resolution 44/25 (1989). UN Standard Minimum Rules on the Administration of Juvenile Justice (the Beijing Rules), United Nations General Assembly Resolution 40/33 (1985).

Other UN Documents

UN Committee on the Rights of the Child General Comment No. 10 on children’s rights in juvenile justice (2007) UN Doc CRC/C/GC/10 25 April. UN Committee on the Rights of the Child General Comment No. 12 on the right of the child to be heard (2009) UN Doc CRC/C/GC/12, 20 July 2009.

Other EU documents

Council of Europe Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice (adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers’ Deputies) (2010) Strasbourg: Council of Europe. Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings. European Commission Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An EU Agenda for the Rights of the Child, COM(2011) 60 final.

chapter 17

Will New Zealand’s Youth Justice System Take the Next Step? Alison Cleland 1 Abstract This chapter asks the question: can young people’s rights to due process be protected within the restorative processes of New Zealand’s youth justice system? It presents research data from interviews with lawyers for youth, Youth Court Judges, and police. The chapter then uses the data to explore the pressures on young people to accept the charges against them and the expectations on them to complete a restorative justice plan. The chapter asks a related question: can the restorative justice processes accommodate young people’s rights to participate? Under the consensus decision-making protocols of Māori, the indigenous people of New Zealand, the views of children and young people may be given little weight. The youth justice system was intended to respect these protocols and its central decision-making forum is based on them. The chapter considers the extent to which the right to participate in youth justice cases can be accommodated within the Māori cultural context.

1 Introduction The youth justice system of Aotearoa2 (New Zealand) is well-regarded internationally. Its success in diverting young people from court and its use of the restorative justice elements in family group conferences (fgcs) are progressive and in line with the un Convention on the Rights of the Child (crc).3 New Zealand embedded several of the crc’s principles relating to youth justice in its legislation through the Children, Young Persons and Their Families Act 1989 (cypfa). Over the past 25 years in which the cypfa has been in operation, a better understanding has developed of the rights of young people in youth justice 1 I am very grateful to my research assistant, Margery Watson, for her professionalism, efficiency and technical communication skills. 2 Aotearoa is the modern name given to the whole country by Māori, its indigenous people. 3 New Zealand ratified the crc on 6 April 1993.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_018

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settings. There is a deeper appreciation of the role of lawyers for youth and a more nuanced consideration of the impact that their role can have on young people’s rights. The system has also started to consider whether the rights of Māori youth, the indigenous young people of New Zealand, are being recognised and upheld in the non-discriminatory way required by the crc. After providing an overview of the youth justice system in New Zealand, this chapter explores the challenges for further progressive implementation of the crc. It does so by analysing empirical data from interviews with lawyers for youth. A key question the chapter addresses is: can the system realise young people’s rights to due process while supporting them as they accept the consequences of their offences and the rigours of the restorative process? The chapter explores the extent to which the restorative justice model may result in pressures on young people to accept the charges against them and to agree to restorative fgc plans. A related and particularly difficult question posed by the chapter is: can fgcs accommodate the rights of Māori youth to participate? Young Māori people are disproportionately involved in fgcs. Under Māori consensus decisionmaking protocols in fgcs, the views of those who have most importance and respect in the group will be given the most weight: the views of children and young people may be of little significance. The extent to which fgcs are able to deliver opportunities for participation may depend ultimately on whether the crc’s universalised approach to rights can be accommodated within the Māori cultural context. 2

Overview of the Youth Justice System in New Zealand

The age of criminal responsibility in New Zealand is 10,4 and children and young people accused of murder or manslaughter are tried in adult courts. For all other crimes, New Zealand has a separate youth justice system governed by cypfa.5 Young people aged 14 to 166 who have allegedly committed offences will either be dealt with by police diversion7 or will appear in the Youth Court.8 4 Crimes Act 1961, s. 21. 5 cypfa Part 4 deals with youth justice. 6 cypfa s. 2 defines a young person as ‘a boy or girl of or over the age of 14 years but under 17 years; but does not include and person who is or has been married or in a civil union’. 7 cypfa s. 208(a) requires that criminal proceedings should not be instituted against a child or young person if there is an alternative way of dealing with the matter. 8 Youth Courts are a division of the District Courts.

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Those under the age of 14 involved in offending behaviour will ordinarily9 appear only in the Family Court. Those aged 17 appear in adult jurisdiction. New Zealand does not have a separate Crown Prosecution Service. Police Youth Aid,10 a specialist division of New Zealand Police, handles youth justice matters. The police decide whether to prosecute young people in the Youth Court or to divert them from formal proceedings. ‘Diversion’ is understood in New Zealand as taking two forms: police Alternative Action or diversion to the fgc process. Police have broad discretion and it is not possible to indicate precisely those offences in respect of which diversion will take place.11 However, Alternative Action is likely to be used when there is a first offence or where the offence is low level (for example, theft and fighting). The young person and their family must be willing to cooperate with police. Examples of what could be included in an Alternative Action Plan12 are: attending drug or alcohol counselling; re-enrolling in school; observing a curfew; and carrying out community work. Only the most serious offences (for example, aggravated burglary) should be prosecuted in the Youth Court. When young people appear in the Youth Court and accept that they committed the alleged offence,13 the court case is adjourned and the case sent to a Court-ordered fgc.14 fgcs are the central decision-making forum in New Zealand’s youth justice system; no formal action may be taken against a young person until an fgc has taken place. The fgc is based on a model of Māori consensus decision-making.15 For Māori, the 9

Youth Courts have jurisdiction to deal with 12- and 13-year-olds who are alleged to have committed serious offences the maximum penalty for which includes imprisonment for life or for at least 14 years; and who are previous offenders charged with an offence the maximum penalty for which includes imprisonment for at least 10 years but less than 14 years (cypfa s. 272(1)). 10 The specialist section of the police is integral to the operation of diversion; it is in line with rule 12.1 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘the Beijing Rules’), which require a specialisation within law enforcement agencies 11 For more information on the use of discretion and the content of Alternative Action Plans, see McLaren K Alternative Actions that Work: A review of the research on Police Warnings and Alternative Actions to Children and Young People (2010). 12 This is drawn up by Youth Aid and signed by the young person and his or her family. 13 The statutory term is ‘not denied’. 14 Most fgcs are either Intention to Charge fgcs, or Court-ordered fgcs. See Trends in Child and Youth Prosecutions in New Zealand 2002–2011 (2012). 15 The extent to which fgcs may be regarded properly as indigenous processes has been questioned. See, for example, Tauri J ‘Family group conferencing: The myth of indigenous empowerment in New Zealand’ in McCaslin WD (ed) Justice as Healing: Indigenous Ways: Writings on Community Peacemaking and Restorative Justice from the Native Law Centre (2005).

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aim of decision-making where there has been offending behaviour is to restore balance to those who have been disrupted or harmed.16 The aim of fgcs is to draw up plans for young people which hold them accountable for offending, acknowledge the harm to victims and meet young people’s needs.17 If young people fulfil the requirements of the plans agreed at fgcs, they may earn a discharge, with no record of the Youth Court proceedings. fgcs are arranged by Youth Justice Coordinators, who are employees of the Ministry of Social Development. They find venues, invite relevant people and facilitate discussion. fgcs involve the young person and his or her family members, the victim, the police and others who may be involved with the young person in a professional or personal capacity.18 For alleged offences that lie between Alternative Action and the Youth Court, young people are likely to be diverted to an Intention to Charge fgc. These take place when the police believe that a young person has committed an offence and are considering taking proceedings, but have not yet done so. In these circumstances, an fgc must take place before any charge is filed in the Youth Court.19 Again, if young people fulfil the requirements of their plans, no formal action will be taken against them. 3

Embedded Children’s Rights Principles ‘Mama ke te tohutohu tamariki, i te whakatika pakeke’ (It is better to train a child than try to repair an adult).

The system maintains a delicate balance between considering the best interests of young people and holding them accountable for offending. The balance is expressed in statute:20 The object of this Act is to promote the wellbeing of children, young persons, and their families and family groups by … ensuring that where children or young people commit offences, 16 17

18 19 20

Quince K ‘Maori and the criminal justice system in New Zealand’ in Tolmie J & Brookbanks WJ Criminal Justice in New Zealand (2007) 339. fgc plans usually have three elements: apologies and reparation to the victim; rehabilitation such as community work; and attendance at appropriate programmes to address young people’s needs. For example, a counsellor, youth worker, mentor or community elder. cypfa s. 245(1). cypfa s. 4(f).

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(i) they are held accountable, and encouraged to accept responsibility, for their behaviour; and (ii)  they are dealt with in a way that acknowledges their needs and that will give them the opportunity to develop in responsible, beneficial and social acceptable ways. Under the Beijing Rules21 a central aim of youth justice is the promotion of welfare, and diversion is a key component of that approach.22 In New Zealand, diversion and the avoidance of formal proceedings are used to promote welfare. Before anything else can happen, young people must take responsibility for having offended. They must do this when the charge is put to them. This will happen either at an Intention to Charge fgc or in the Youth Court, and again at the subsequent Court-ordered fgc. At an Intention to Charge fgc, the police will read the statement of facts and ask if the young person accepts them. In the Youth Court, the young person will be asked how he or she pleads to the charge. The formal legal acceptance of offending in the Youth Court is ‘not denied’23 rather than ‘guilty’. This plea allows the Youth Court to adjourn the proceedings until a Court-ordered fgc has been held. If a young person completes an Intention to Charge fgc plan successfully, no charge will be laid in the Youth Court. On successful completion of a Court-ordered fgc plan, the proceedings may be discharged with nothing appearing on the young person’s record.24 In 2013, 46 per cent of the young people who appeared initially in the Youth Court earned such a discharge.25 Young people must also take responsibility for having offended, by making reparation to the victim where they can. Victims of the young person’s offending – or their representatives – have a right to attend the fgc.26 Research conducted in 2001/2 found that 97 per cent of the young people appearing in the Youth Court and fgcs agreed to undertake activities that held them 21

22 23 24 25

26

United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), adopted by General Assembly resolution 40/33 of 29 November 1989, rule 5. United Nations Standard Minimum Rules for the Administration of Juvenile Justice, rule 11.1–11.4. cypfa s. 259(2). cypfa ss. 246(b)(ii) and 282(2). Figures for 1992 to 2013 are available at Statistics New Zealand website, http://www.stats .govt.nz. The remaining 54 per cent will be the subject of Youth Court orders, which appear in a hierarchy from admonishment to conviction and transfer to an adult court. cypfa s. 251(f).

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­accountable for what they had done: 76 per cent made apologies to their victims and 67 per cent carried out work for the victims or their communities.27 3.1 Diversion and Rehabilitation Within the international youth justice community, New Zealand’s system is admired,28 particularly in relation to diversion rates. The first statutory youth justice principle is that ‘[u]nless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter’.29 This reflects the crc’s principle that measures should avoid judicial proceedings. Almost 80 per cent of young people do not enter the criminal justice system at all: they are subject to police diversion,30 primarily through Alternative Action. This system appears to embody the arrangements envisaged by the diversion provisions in the Beijing Rules.31 Rehabilitation is more likely where young people have not been exposed to a formal justice system and do not carry any criminal record with them. When Youth Court proceedings are discharged following completion of an fgc plan, the statute provides that the charge ‘is deemed never to have been laid’.32 There is no court record and police may not refer to it in any subsequent proceedings. 3.2 Due Process Rights Two important due process rights in the crc and Beijing Rules are the right to legal and other appropriate assistance,33 and the right not to be compelled to give testimony or confess guilt.34 When a young person appears in the Youth Court, the court must appoint a barrister or solicitor35 to represent him or her.36 27 28

29 30 31 32 33 34 35 36

Maxwell G et al. Achieving Effective Outcomes in Youth Justice: Final Report (2004) 240. Unfortunately, no research more recent is available on this matter. See Becroft A (Principal Youth Court Judge of New Zealand) ‘“All the World is Watching”: Reflections on the First World Congress on Juvenile Justice, Geneva, Switzerland, January 2015’ 69 Court in the Act 2. S. 208(a) cypfa. See Statistics New Zealand website, http://www.stats.govt.nz. Rule 11 states, inter alia, ‘the police […] shall be empowered to dispose of such cases, at their discretion, without recourse to formal hearings’. cypfa 282(2). Art. 40.2(b)(ii) crc and Beijing Rule 7.1. Art. 40.2(b)(iv) crc and Beijing Rule 7.1. ‘Barrister’ refers to a lawyer who conducts business on his or her own account only; a ‘solicitor’ may be part of a firm of lawyers or employed on an in-house basis. S. 323(1) cypfa.

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This is a specialised role undertaken by Youth Advocates. The protocol on appointment and review procedures for Youth Advocates37 indicates that they should have knowledge of specialist police practices with young people, the personnel of the system and restorative justice practice. They should also have the ‘ability to relate to and communicate with young people and their families’.38 Once appointed, the Youth Advocate will advise the young person at all stages of the process and will attend fgcs. Young people who appear in the Youth Court are therefore guaranteed legal representation, but not all fgcs are Court-ordered; almost half are Intention to Charge fgcs. In these, as noted above, if young people accept the police allegations and complete their plans, no charges will be laid in the Youth Court. In terms of diversion, Intention to Charge fgcs are extremely useful; the difficulty is that there is no provision for legal representation before or during them. From the point of view of due process, putting an accusation to a young person when he or she has had have had no legal advice is extremely problematic.39 The young person will have no lawyer to check whether the statement of facts matches the young person’s version of events or to identify where there may be overcharging.40 There will be no advice given to the young person about the potential consequence of admitting a charge or failing to complete a plan. In that event, the Youth Court case against the young person will resume; the young person will have a record of court proceedings against him or her and may be made the subject of a restrictive order, such as supervision with residence in a Youth Justice facility. The legislation does not explicitly articulate the right not to be compelled to give testimony or confess guilt. Instead, young people have the right to deny any charges laid against them in the Youth Court and, where they do so, the

37

38 39 40

Principal Youth Court Judge Becroft ‘Appointment and review procedures for youth advocates’ (2006). This is an internal Youth Court protocol and guidance document. It is not published formally. It is made available to relevant personnel, including lawyers, judges and court officials. It is available at https://www.lawsociety.org.nz. Principal Youth Court Judge Becroft ‘Appointment and review procedures for youth advocates’ (2006) para. 3.5. For a useful discussion of this breach of the crc, see Lynch N ‘Restorative justice through a children’s rights lens’ (2010) 18 International Journal of Children’s Rights 161–83. There is no formal documentation or research indicating the extent to which overcharging may occur, but interviewees stated that overcharging was one of the matters with which they were particularly concerned. If young persons accept the police’s version of events in overcharging cases, they may face serious sanctions if they are unable to complete their fgc plan and appear again in Youth Court.

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matter must proceed to a defended hearing.41 That hearing will test the evidence to the high criminal standard of proof, that is, beyond reasonable doubt. However, if a young person chooses to put the Crown to proof, he or she can no longer obtain the benefits of the fgc process, except to the extent that an fgc may advise the court on sentencing. In formal terms a young person cannot be compelled to ‘not deny’ a charge so that the case may proceed to an fgc. The concern is whether there is impetus to do so from personnel within the system. The benefits to the young people are clear: ‘not denying’ the charge puts them on a path to completion of an fgc plan, with a good chance of obtaining a section 282 discharge. While this decriminalisation and diversion are welcome, it is important to explore whether young people are under pressure to accept that they committed the offence and not to insist on defended hearings. The Youth Advocate is the one person within the system who is charged with upholding the young person’s due process rights. The ways in which these lawyers discharge their obligations can tell us much about the extent to which the system is presently meeting the crc and Beijing Rules standards. 3.3 Rights to Participation42 One of the fundamental principles of the crc is the article 12 right of the child to express views freely and have these taken into account in all matters affecting him or her.43 What does ‘participation’ mean in this context? In General Comment No. 12,44 the un Committee on the Rights of the Child has stated that to participate effectively in youth justice proceedings, the young person should be informed promptly and directly about the charges and about the process and possible measures that may be taken. This information must be given in language that the child understands. Bearing in mind the right to express views freely, the Committee notes that proceedings should be conducted in private and in an atmosphere that allows youth participation.45 41 42

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cypfa s. 246(a). Many of the key issues raised in this section of the chapter arose from discussions with my colleague Khylee Quince, a leading indigenous scholar. Khylee’s vast knowledge and generosity in sharing this with me has allowed me to explore some of the difficult issues involved. All errors in respect of tikanga Māori, that is, the proper way of doing things according to Māori culture, are my own. Art. 12 crc. un Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009), CRC/C/GC/12. un Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009), CRC/C/GC/12, paras. 60, 61.

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The importance of atmosphere and of the language used in proceedings were both emphasised by the European Court of Human Rights in T v uk and V v uk.46 The intimidating and public nature of an English trial to which the 11-year-old boys in this case were subjected made meaningful participation unlikely. Youth Court47 and fgc proceedings48 in New Zealand cannot be reported publicly, and the statute is explicit that the Youth Court must be satisfied with regard to a young person’s understanding.49 However, participation is about more than explanations in age-appropriate language and closed proceedings. A sophisticated exploration of the concept50 might be interested in the extent to which the adults involved in the decision-making process encourage young people to contribute their own perspectives on the offending and whether the young people had opportunities to understand the consequences of their offending for their victims. Youth Advocates have the same duties as the Youth Court51 to explain legal implications in ways their young clients can understand and to satisfy themselves that those clients understand the proceedings.52 The statute attempts to ensure that young people understand the court process, but makes no such provision for understanding of the fgc process, the system’s central decisionmaking forum. The general principles governing the youth justice system in New Zealand refer to participation of families and of young people: [W]herever possible, a child’s or young person’s family, whanau, hapu, iwi and family group should participate in the making of decisions affecting that child or young person;53 consideration should be given to the wishes of the child or young person, so far as those wishes can be reasonably ascertained, and […] 46

47 48 49 50

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T v United Kingdom (24724/94), V v United Kingdom (24888/94) 30 e.h.r.r. 121; these ­concerned the claims by the boys found guilty of James Bulger’s murder that they had not received a fair trial under article 6 of the ECtHR; the court referred frequently to the crc. cypfa s. 438(1). cypfa s. 271. cypfa s. 10(1)(b). See, for example, Weijers I ‘Requirements for communication in the courtroom: A comparative perspective on the Youth Court in England/Wales and the Netherlands’ (2004) 4(1) Youth Justice 22–31. Weijers proposes three dimensions of communication: explanation; general attitude of personnel to the young person; and moral communication. cypfa s. 10(1)(a). cypfa s. 10(2)(a) and (b). cypfa s. 5(a). Whanau approximates to ‘extended family group’, hapu to ‘sub-tribe’ and iwi to a ‘tribe’.

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those wishes should be given such weight as is appropriate in the circumstances, having regard to age, maturity, and culture of the child or young person.54 Young people have a right to attend their fgcs55 but there is no specific duty placed on fgcs to have regard for young people’s views. Young people must rely on the general principle that consideration should be given to their wishes. The context and wording of the general principle suggest that the provision may be inadequate in terms of article 12 of the crc, because the rules of Māori consensus decision-making used in fgcs may not recognise the right of a young person to be heard. During the 1980s, Māori voiced anger and deep resentment about the ways in which the state made decisions about their children and young people. A Ministerial Advisory Committee report – Puao-te-ata-tu (Daybreak)56 – found that child protection practices and work with families by the Department of Social Welfare were institutionally racist. The influence of Puao-te-ata-tu on the children’s legislation enacted in 1989 was profound. Draft legislation was rewritten to ensure that, in all care and protection and youth justice processes, the family, whanau,57 hapu, iwi58 and family groups of the children and young people should be involved and strengthened. For Māori, their identity is inextricably connected with their genealogy and ancestral lands. To allow nonMāori to make decisions about what might be best for a Māori child or young person is seen as offensive, racist and likely to be detrimental to the child or young person.59 cypfa therefore requires that any measures dealing with young people accused of committing offences should be designed ‘to foster the ability of families, whanau, hapu, iwi and family groups to develop their own means of dealing with offending by their children and young persons’.60 The fgc process was intended to be a consensus decision-making forum, where the views and perspectives of the family of the young person would be central to the 54 55 56 57 58 59

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cypfa s. 5(d). cypfa s. 251(1)(a). Puao-te-ata-tu (Day Break): The Report of the Ministerial Advisory Committee on a Maori Perspective for the Department of Social Welfare (1988). Family group descended from common ancestor. Larger tribal groups descended from a common ancestor. See, for example, Webber-Dreadon E ‘He Taonga Mo o Matou Tipuna (A gift handed down by our ancestors): An indigenous approach to social work supervision’ (1999) Social Work Review 11(4). cypfa s. 208(c)(ii).

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discussions and outcomes. This explains the foregrounding of the participation rights of the family. It also explains the absence of a duty on fgcs to take account of young people’s views. In the context of the collective conversation that takes place in the fgc, from a Māori perspective the views of those in the collective decision-making group who carry most respect and importance are given the most weight. The views or wishes of young people will often be far less significant and may carry little weight.61 cypfa reflects this understanding of the young person’s place in the process. The general principle says that consideration should be given to the young person’s wishes, but it is qualified. Wishes need only be considered if they can ‘reasonably be ascertained’; where they can be ascertained, the weight to be given to them is subject to ‘age, maturity and culture’.62 The crc does not include culture as a qualifier, and in the New Zealand context the question of interest is the extent to which Māori cultural norms accommodate young people’s participation during the fgc discussion. In the absence of a right to be heard at their fgcs, the ways in which their Youth Advocates ensure that young people understand what is going on in fgcs will be crucial to an assessment of the extent of participation. 4

Messages from Interviews with Youth Advocates

4.1 Methodology The research project, data from which are used here, began in 2011.63 The project analysed the extent to which youth justice processes in New Zealand protect and promote the due process and welfare rights of young people. I conducted research interviews in four sites, both rural and urban. Participants were drawn from three groups of personnel in the system: Youth Court judges; Youth Advocates, the lawyers for young people; and Youth Aid officers, the specialist members of New Zealand Police who deal with young people. Contact details for the judges in the sites of interest were provided by the Office of the Principal Youth Court Judge, as were the names of Youth Advocates 61

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This is not always the case. A person’s importance and respect in Māori society (referred to as mana) derives from birthright and from achievements throughout life. Young people may have a high status within the group, but their youth will mean they may have achieved less. S. 5(d) cypfa. The full report of findings in respect of youth advocates is Youth Advocates in Aotearoa New Zealand’s Youth Justice System: Exploring the Roles, Functions and Responsibilities of Lawyers for Young People (2012).

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on the Youth Court lists. Judges and Youth Advocates were invited by direct email to participate in the research. Participant Information Sheets (pis) and consent forms were sent with the emails and the latter signed64 before interviews commenced. Youth Aid officers were contacted through New Zealand Police, which required the researcher to sign a confidentiality agreement. New Zealand police contacted the commanding officers of the Youth Aid officers in the relevant sites and requested them to give pis and consent forms to those officers. Once a Youth Aid officer had consented, his or her contact details were provided to the researcher. Fifty-one participants65 were interviewed. The semi-structured interviews were digitally voice-recorded,66 then transcribed.67 The transcriptions did not contain any identifying information for the participants. My research assistant imported all data from transcripts into Nvivo, and this specialist software programme allowed us to analyse the large amount of material collected. In coding the transcripts for analysis in respect of due process rights, I worked from the premise that for these rights to be delivered effectively, there had to be mechanisms in place to ensure that young people understood what was happening and could participate in the process. I explored the following broad questions: • What information would young people have about the processes of the Youth Court and of fgcs? • How were the charges against them explained to the young people? • How were the consequences of pleading ‘denied’ or ‘not denied’ explained? • What encouragement and forms of support were available to help young people participate in the youth justice processes? The resulting interview data are qualitative and I make no claim that my research findings are representative of the operation of the youth justice system in New Zealand. It is essential that further research is undertaken, particularly with young people. Their insights and experiences often are missing from ­academic discussions,68 and this has been a significant limitation in my own 64 65 66 67 68

Consent forms are securely stored as required by the governing university ethics application for the research. Thirty-four Youth Advocates (lawyers), nine Youth Court Judges and eight Youth Aid ­Officers (police). Recordings were assigned a random number when saved to password-protected files. The transcription service used has a Memorandum of Understanding with the University of Auckland, setting out all confidentiality requirements. Research undertaken for the Ministry of Justice involved 43 semi-structured interviews with young people who had appeared in the Youth Court. The young people were asked to

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work to date. However, the detailed explanations from adult participants provide useful insights into youth justice practices in New Zealand. Only interview data from the 34 Youth Advocates69 are analysed here. Twenty-six of the 34 had criminal law experience and 18 had both criminal and family law experience. Other experience included youth work (10), mental health law (six) and law enforcement (four). Fourteen Youth Advocates had more than 20 years of experience in the system, 10 had between 10 and 19 years, four had between five and nine years, and six had less than five years. Twenty were male and 14, female. One identified as Māori. 4.2 Understanding and Participating in Youth Court When young persons are to appear in the Youth Court, particularly for the first time, it is important to know what information they will have before they appear. In terms of due process, the amount of time available for Youth Advocates to speak to young people is important. There were significant variations in answers to the question, ‘Typically, how much time would you have with the client before court?’ The most common answer indicated around five to fifteen minutes,70 and some Youth Advocates expressed concerns about this: You get a phone call from the court saying, either you’ve got a new one, or a client of yours has been arrested and is appearing at nine-thirty, tenthirty, eleven o’clock, whatever the time the court says it’s going to be, and that’s the first you know about it. So you’re scrambling to get what information you can, particularly if it’s a new client that you know nothing about. There were marked differences between rural and urban Youth Courts. When the courts were less busy, Youth Advocates might have half an hour or more to talk with their clients. The quieter courts were said to be more flexible, being willing to ‘stand down’ cases71 and to adjourn to another date:

69 70 71

describe their experiences of appearing and what their view was of the Youth Court after they had been through the process. The data are very useful and highlight the variations in young people’s experiences. The data are contained in: Ministry of Justice Research Team, Justice Sector Strategy Youth Court research: experiences and views of young people, their families and professionals (2011). The 34 Youth Advocates interviewed represented 14 per cent of the total number of Youth Advocates operating in New Zealand at the time the research was conducted. The shortest time mentioned was ‘two or three minutes’; the longest was 45 minutes. If a young person’s case is ‘stood down’, it is put to the end of the list of court business and is called later that day.

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[I]f I’m meeting a young person [for the first time] I’ll just simply go and tell the judge, “Look, I’ve had five minutes, this is what I’ve been able to ascertain, this matter’s going to have to be put off until the next Youth Court date so I can see the young person and take them through the process.” The key issue that Youth Advocates and young people need to cover before court is whether the young person will plead ‘denied’ or ‘not denied’ in relation to the charge or charges. To make an informed decision, the young person needs to appreciate the legal consequences of each plea. To do that, he or she must understand the charge and the accompanying summary of facts. Youth advocates approached the issue of comprehension differently, depending on whether the charges were in their view ‘serious’ or more routine. Where they judged the matter to be serious, they took a more technical, legalistic and rights-based approach: [O]ften there will be the combination of admission and being caught redhanded. If I read the summary of facts with them and I say, “Is that true?” and they say, “Yes,” well, that’s enough for me to say, “This young person does not deny the charge.” If there are any issues that arise, however, I would take more time to go through those issues, and if it was impossible to do so on the day I would adjourn the case without plea to go through an issue. Most things are not denied … but I do consider it very important to get to, to ascertain, whether the youth has got a defence and whether he truly wants to plead guilty because there’s nothing worse than bulldozing him. Young people often commit offences while in groups.72 It was unsurprising, then, that many Youth Advocates talked about the importance of giving a clear explanation of the concept of being ‘party to’ an offence: To explain to a young person the concept of being a party to an offence is a very complicated thing, ‘cos they’re, “I didn’t do it.” “Yeah, but you were standing there waving your fist in his nose while somebody else did it,” sort of stuff. I mean so you’ve got to dumb it down but use concepts and language that conveys that sort of information. 72

See, for example, Reiss AJ & Farrington D ‘Advancing knowledge about co-offending: ­ esults from a prospective longitudinal survey of London males’ (1991) 82(2) The Journal R of Criminal Law and Criminology 360–95; McCord J & Conway KP ‘Patterns of juvenile delinquency and co-offending’ in Waring E & Weisburd E (eds) Crime and Social Organization: Advances in Criminological Theory Vol 10 (2002).

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Well, you know, you can be guilty of burglary even though you are down the block. If you’d set out to grab some wine in a liquor shop at two o’clock in the morning, ‘cos you need more booze, then it doesn’t matter who did what. None of the Youth Advocates interviewed used ‘denied’ and ‘not denied’ when explaining the consequences of the pleas: I’ll draw a diagram and say, “You’re here, these are the two paths that you can take.” And basically the two paths are around whether you admit the charges and also sometimes I call that pleading guilty although we’re not really supposed to. Because again they understand what pleading guilty is and if they understand that admitting and pleading guilty is the same thing we’re all on the same wavelength. And then the other path is denying charges, or pleading not guilty. Most of them, I suspect, understand what they see on tv – guilty, not guilty or whatever, and usually I have that sort of discussion with them […] I want to know whether you did it or didn’t do it, and the judge wants to know whether you did it or didn’t do it. Youth advocates were focused on their clients’ due process rights when covering serious charges and complex issues and when explaining the consequences of pleas. However, in simpler cases, they appeared to use a less confrontational approach, not arguing about the exact details in the police statement of facts: There are times when pursuing a denial which may be technically and legally justified is not going to result in the best overall outcome. As noted above, it may be in a young person’s interests to accept that he or she committed an offence, where this means he or she can complete an fgc plan successfully and exit the system. This consideration was prevalent in the advice given to young clients in cases regarded as routine: If they say, “I didn’t do it,” then I will say, “You didn’t do it, that’s fine. But, little Johnny,73 if you are saying to me that you didn’t do it, but you’re thinking in your head that you might have, I’ll just tell you what I think would happen as a result of this if we did enter a non-denial, or an admission and 73

Every Youth Advocate, when giving examples of how they approached cases, referred to their client as ‘Johnny’ or ‘little Johnny’.

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this is what’s likely to happen to you.” Because once they hear that, all of a sudden they don’t mind accepting some responsibility. The whole idea is to try and sort it out so that you make up for what you’ve done and we can do stuff to make sure you don’t come back here again. And if you sort it all out and don’t get into any more trouble before you sort it out, you’ll be discharged without a record. The importance of ‘not denying’ charges and of taking responsibility for behaviour was one of the clearest themes to emerge from the interviews. This is in line with the legislative objective of holding young people accountable and encouraging them to accept responsibility for their actions.74 Where the charge is appropriate and the summary of facts accurate,75 the benefits to the young person of adjournment of the Youth Court case, completion of an fgc plan and possible achievement of a discharge are undeniable. However, could the perceived benefits of ‘not denying’ charges undermine young people’s formal rights not to self-incriminate and to test cases against them? What if there is over-charging and the summary of facts has not been challenged? Should we remain at ease with the impetus to ‘not deny’? Many participants were comfortable with the foregrounding of best interests at the expense of due process: And as a youth advocate you’ve got to balance strict legal rights and wrongs against, well, what’s in the interest of the young person. And sometimes that requires taking a pragmatic approach as opposed to a strictly legal approach. But the best interest of the young person is to proceed with the plan because usually they have personal issues, etc. This is an opportunity to put things in place to help them. Anyway, are you helping them as an advocate by taking a strict approach in trying to “get them off”, to use a nasty expression? Or is it perhaps best to say, “The outcome’s going to be a 282 discharge, the plan is a good plan because this person needs the help and assistance which is being provided in terms of the plan.” So let’s just run with it as opposed to being nit-picking. The lawyers were less at ease, however, if a Youth Court judge pushed a young person to accept charges: 74 75

cypfa s. 4(f)(i). Many Youth Advocates referred to negotiating the reduction of charges and amendment of police summaries of facts.

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You’d get up and you’d say, “Johnny’s denying the charge.” And the judge would say, “Oh, can I see the summary of facts? Oh, so tell me what happened, tell me what you did. You realise that if you did this and you admit it you’re not going to get anything, nothing much is going to happen to you anyway?” And I’m sitting there seething […] The restorative fgc process, as the key decision-making forum, has been placed deliberately at the centre of the system. The fundamental belief is that a criminal court is the wrong place for young people and that they should be kept out of it whenever possible. Dealing with the young person in an fgc promotes his or her best interests by putting the decriminalisation and diversion principles into practice. The non-legal, restorative nature of the fgc process justifies the limited emphasis on due process rights. This logic is behind the anger of the Youth Advocate in the last quote above. It is not appropriate for a Youth Court judge to cajole a young person into accepting a charge. That acceptance must come after an explanation from a Youth Advocate about what the legal elements of that charge are and the legal significance of ‘not denying’ it. The logic is sustained, so long as the system can be confident that the young people understand exactly what charges they face and what will happen if they admit the charges but fail to complete their fgc plan. This logic is also behind the lack of provision for lawyers at Intention to Charge fgcs. These fgcs allow a large number of young people’s cases76 to avoid court altogether. No charge has been laid in court, so there is no need for legal advice. Ironically, however, the commitment of youth justice personnel to the principles of decriminalisation and diversion may result in encouragement to young people to accept allegations that do not reflect their actions accurately, so that young people gain the benefits of the fgc process. In respect of pressure applied at an Intention to Charge fgc, who will explain the consequences of giving in to the pressure? Yes, there are positive consequences, but the young person needs to appreciate that failure to complete the tasks or to comply with the restrictions in the plan will most likely result in the matter going to the Youth Court. It is not part of the role of either coordinators or Youth Aid officers to satisfy themselves that young people understand what is going on.77 One participant indicated

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About half of all annual fgcs are Intention to Charge fgcs. The only requirement on the fgc is to ascertain whether the young person ‘admits any offence alleged’ – Children, Young Persons, and Their Families Act 1989, s. 259(1).

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that social workers78 understand the need for lawyers in some Intention to Charge fgcs: Researcher: But would you ever go to an Intention to Charge? Participant: Rarely, but if it’s a significant charge, on occasion Child Youth and Family have gone to the registrar and said, “Look, although this is an intention to charge conference, it’s important for some reason and we want a Youth Advocate assigned.” And I have done them in that sort of situation before. It seems axiomatic that the more understanding young people have of the fgc process, the more engaged they are likely to be. A further issue therefore is: how well can young people understand and participate in fgcs? 4.3 Understanding and Participating in fgcs There was some variation in whether Youth Advocates saw clients before fgcs and, if they did, how much advice they would provide about the process: I just turn up. The coordinator is very hands-on and he explains to everybody, including the youngster, why they’re there and what the family group conference is about. Certainly, prior to the fgc I tell them what’s going to happen and that we’re going to talk about what happened and possibly why it happened, and what was going on at that time, and then we’re going to make a decision, all together, about what to do about it […] Yeah, it’s a pretty shallow explanation, but it serves the purpose. This seems commensurate with the deliberate intention of the legislation to provide a less formal restorative justice process. A fgc may regulate its procedure in ‘such a manner as it sees fit’.79 Youth advocates were less focused on telling young people what would or could happen at fgcs and more intent on ensuring that young people understood that they would be expected to accept responsibility and to apologise to any victims who attended. The lawyers had the discharge goal clearly in view and wanted to explain to clients how to achieve this. Their focus was on young clients’ understanding of the aims and consequences of the fgc plans, rather than of the process. 78

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The department of the Ministry of Social Development that deals with care and protection and youth justice cases is Child, Youth and Family services (cyfs). Youth Justice social workers are employed by cyfs. cypfa s. 256(1).

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As a result of this goal-oriented approach, the language that Youth Advocates used when giving advice about fgcs was much more directive than previously: What I think you should do and you don’t have to, but I think it would be a real good thing for you to stand up and say that’s what happened and I’m sorry […] Well, you’re really lucky these victims have taken the time to turn up, so now you’ve got an opportunity to say sorry, which you wouldn’t have had if they hadn’t have come. Make the most of it, look them in the eye, mean it […] The impetus for the young person to take responsibility for their offending behaviour was most evident in the parts of the interviews in which Youth Advocates discussed fgcs. I asked: ‘How easy is it for young people to participate in the fgc?’ The unanimous response was that it was not at all easy. The lawyers identified various barriers to participation, including the large number of adults present, the presence of victims and young people’s lack of communication and social skills: Now this boy had no social skills whatsoever and he had an attitude. But he was also scared, I think, as the youth coordinator said, “Listen, this is suddenly a whole roomful of people.” Because when called upon to apologise he just wouldn’t. Now that may not be an accurate reflection of how he felt. The victim gets an opportunity to speak if they’re there and then the young person gets an opportunity to say he’s sorry. But obviously it backfires sometimes, or often, because they are – they’re not socially adept and they’re intimidated by these people. The way in which those I interviewed discussed fgcs made it clear that the biggest barrier is that the process wants to hear only two things from the young person: an admission and an apology. Legislation does not require fgcs to take account of young people’s views or perspectives when drawing up the plans. The plans are drawn up for the young people but not with them. The difficulties for young people are compounded when we begin to appreciate the cultural context in New Zealand. Fifty-eight per cent of the young people involved in Youth Court in 2013 were Māori.80 Although official figures 80

See Statistics New Zealand, www.stats.govt.nz.

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are not available for the ethnic origin of young people attending fgcs, it is a reasonable assumption that a majority will be Māori. This means that the process should reflect Māori cultural expectations. Only one Youth Advocate whom I interviewed identified as Māori.81 All participants expressed concerns that the process might not be working for Māori young people: You want to try and encourage the young person to talk and to participate because it’s about them, the reason they’re there is ‘cos it’s their conference. Particularly if there are victims present. I mean, my experience is victims love young people standing up and saying, “I’m sorry.” And again you’ve cultural issues there. The average Māori youth is not going to stand up and look somebody in the eye and say, “I’m sorry.” They will look at a spot on the floor about three feet in front of them and mumble, “I’m sorry”. And it’s as much a cultural thing as anything else. Culturally it’s not okay to look adults in the eye, and to try and get them to move beyond that point – you’ve got to be aware of that […] Interviewee references to Māori, although limited, suggested that the fundamental concepts of youth participation, apology and culpability needed to be understood in the Māori cultural context before making a judgment about the extent to which the system is supporting young people’s right to be heard. This may seem paradoxical: fgcs are based on a Māori consensus decision-making model. The paradox may be resolved if we postulate fgcs that are Māori in form but governed in substance by culturally inappropriate, Western legal concepts. Ausubel82 discussed the tendency for those in one culture to define key concepts (such as apologies for guilt) in their own cultural terms. Blagg has argued83 that a colonising legal system can ‘essentialise’ a culture and divest it of its indigenous history. Many Youth Advocates emphasised the importance of young people’s apologies to victims. In the Western common law tradition, these follow a finding of guilt; guilt-oriented cultures emphasise external judgment of individual behaviour.84 Shame-oriented cultures, many characteristics of which 81 82 83 84

There are currently no official figures showing how many Youth Advocates, Youth Aid Officers or Youth Justice Coordinators identify as Māori. Ausubel DP ‘Relationships between shame and guilt in the socializing process’ (1955) 62(5) Psychological Review 378–90. Blagg H ‘A just measure of shame? Aboriginal youth and conferencing in Australia’ (1997) 37(4) British Journal of Criminology 481–501. Ausubel DP ‘Relationships between shame and guilt in the socializing process’ (1955) 62(5) Psychological Review 378–90, fn. 82.

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can be seen in Maori culture, emphasise the feeling of shame or remorse – the Māori concept is whakama – which should precede a finding or acknowledgement of wrong-doing.85 A young person in a state of whakama is expected to be unresponsive and non-verbal.86 The understanding of what an apology is and what it looks like may be very different from Western and Māori perspectives. 5

Suggested Next Steps

With regard to due process, the research interviews highlighted several next progress steps that the system needs to take to implement the crc further. These involve both procedural and legislative changes, and relate to Youth Court timetabling; provision of legal representation; prioritising of young people’s views; and the cultural appropriateness of fgcs. 5.1 Understanding of Charges and Pleas Discussions with Youth Advocates demonstrated the importance of taking time and explaining legal implications so that the young people understood what they were charged with and what that meant. Youth Advocates may have the skills to give these explanations, but that is irrelevant if the processes in Youth Court do not give them the time to do so. It would be very helpful if the courts that are particularly busy carried out a review of the numbers of young people’s cases being put on the roll on Youth Court day and sought input from the Youth Advocates on their lists about whether adequate time is available for giving advice before young people appear. A procedural directive from the Office of the Principal Youth Court Judge could indicate that best practice would allow young people to spend half an hour with their Youth Advocate before their first Youth Court appearance. The need for such a caseload review is now more pressing as the government has made changes to District Court administration to reduce expenditure.87 A review of those changes should be conducted to assess the impact on the Youth Court. Simply because a ‘not denied’ is given at an Intention to Charge fgc instead of the Youth Court does not mean it carries no legal consequences. The research suggested that Youth Justice personnel were focused on getting young people onto fgc plans and through the system. There was a powerful impetus 85 86 87

Metge J In and Out of Touch: Whakama in Cross-Cultural Context (1986). Explained orally to the author by Khylee Quince. See also Quince’s analysis of the youth justice system in Cleland A & Quince K Youth Justice in Aotearoa New Zealand (2014), chap. 5. See, for example, Ministry of Justice A New Way of Working for District Courts in Auckland (2012).

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for young people to ‘not deny’ the charges, in their best interests. The system needs to counter-balance that impetus with careful legal advice about the meaning and possible consequences of a ‘not denied’ plea at the Intention to Charge fgc. The legislation should be amended to place fgcs under the same duty as Youth Courts to ensure that young people understand the nature of proceedings. In addition, it should be possible for Youth Advocates to meet with young people prior to fgcs. The simplest way of ensuring this might be to place Youth Justice Coordinators under a duty to ensure that legal advice is available to young people. The coordinator would contact the Youth Court registrar, who would give details to a Youth Advocate from the court list. 5.2 Participation of Young People in fgcs Youth Advocates were honest in admitting that, despite the efforts of all those at fgcs, young people did not participate to any significant extent. The system cannot hide behind the overarching best interests and restorative justice philosophies that drive the fgc process. The crc requires best interests to be a primary consideration in all decisions affecting young people,88 but this is only one of the fundamental principles of the crc.89 The legislation could be amended to place fgcs under a duty to ascertain the views of young people – particularly in respect of draft plans – and to take account of those views. There are two obvious difficulties with such an amendment. The integrity of fgcs as non-legalistic and consensus-based will be undermined if legislation directs the fgc process; and the proposed duty assumes that, in cultural terms, it is appropriate to seek young people’s views. Looking again at the general principle, it states that consideration should be given to the ascertainable wishes and feelings of young people, ‘having regard to age, maturity and culture’ (emphasis added). What does it mean to have regard to culture, when considering views? I would suggest that the only people who can answer that question are young people’s family groups. It is legitimate for legislation to require fgcs to ensure that young people understand the process and possible consequences, but it should go no further than that. It is essential, therefore, that research is conducted into young people’s participation in fgcs. The research must be informed by cultural understandings of key concepts employed by the process and should hear from all types of participants, placing young people’s experiences at the centre of the enquiry. Where does that leave us, then, in terms of creating space for young people to express views in fgcs if they wish to do so? Given the disproportionate 88 89

Art. 31 crc. The others are generally regarded as art. 2 (non-discrimination), art. 6 (right to life) and art. 12 (right to be heard).

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numbers of young Māori in the system, I think it leads us to the conclusion that, as a first step, the venue and procedures used in fgcs need to be much more culturally responsive and driven by the family group of the young person. Many fgcs take place in Child Youth and Family (social work) offices. This is not an appropriate venue for ensuring that families are empowered to conduct fgcs according to their own cultural protocols. The system has already acknowledged the limitations of the Youth Court in terms of cultural responsiveness by setting up Nga Kooti Rangatahi-Rangatahi Courts in several parts of the country.90 These courts take the Youth Court out of the courtroom and onto the marae, where Māori cultural protocols prevail.91 The marae is the centre of a Māori community, where communal discussions and events take place. It represents the ancestor to whom all community members relate, and one of the motivations for taking Youth Courts onto the marae was to connect young people to their culture and history.92 There is no reason why fgcs should not also be moved to the marae. The Ministry of Social Development has begun a review of fgc processes and practices.93 It is the ideal time to make arrangements with communities for at least some marae to be recognised as fgc venues. This may not lead to young people’s expressing views right away, but it will implement their right to nondiscrimination by providing a process that is culturally appropriate. 6 Conclusion The next steps required are not complex. The changes to the Youth Court timetable and the shift of fgc venue to the marae are both procedural steps that could be taken without amendment of the legislation. All that is required is the will and appreciation of how important the steps are in terms of due process. Legislative amendment would be needed to place fgcs under a duty to satisfy themselves that young people understand the proceedings and to require coordinators to ensure that legal representation is available to young people at Intention to Charge fgcs. These are neither difficult nor should they be controversial, if the system is serious about implementation of the crc. 90 91 92 93

The thirteenth Rangatahi Court was launched on 14 March 2015. Kaipuke Consultants Evaluation of the Early Outcomes of Nga Kooti Rangatahi (2012) 22. Kaipuke Consultants Evaluation of the Early Outcomes of Nga Kooti Rangatahi (2012) 25. See Te Awatea Violence Research Centre Evaluation of Family Group Conference Practice & Outcomes: Scoping Phase (2014).

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Bibliography Books

Cleland A & Quince K Youth Justice in Aotearoa New Zealand (2014) Wellington: LexisNexis. Metge J In and Out of Touch: Whakama in Cross-Cultural Context (1986) Wellington: Victoria University Press.

Chapters in Books

McCord J & Conway KP ‘Patterns of juvenile delinquency and co-offending’ in Waring E & Weisburd E (eds) Crime and Social Organization: Advances in Criminological Theory Vol 10 (2002) New Brunswick: Transaction, 15–30 Quince K ‘Maori and the criminal justice system in New Zealand’ in Tolmie J & Brookbanks WJ Criminal Justice in New Zealand (2007) LexisNexis 333–358 Tauri J ‘Family group conferencing: the myth of indigenous empowerment in New ­Zealand’ in McCaslin WD (ed) Justice as Healing: Indigenous Ways: Writings on Community Peacemaking and Restorative Justice from the Native Law Centre (2005) St. Paul, Minnesota: Living Justice Press, 313–323

Journal Articles

Ausubel DP ‘Relationships between shame and guilt in the socializing process’ (1955) 62(5) Psychological Review 378–90. Blagg H ‘A just measure of shame? Aboriginal youth and conferencing in Australia’ (1997) 37(4) British Journal of Criminology 481–501. Lynch N ‘Restorative justice through a children’s rights lens’ (2010) 18 International Journal of Children’s Rights 161–83. Reiss AJ & Farrington D ‘Advancing knowledge about co-offending: results from a prospective longitudinal survey of London males’ (1991) 82(2) The Journal of Criminal Law and Criminology 360–95. Webber-Dreadon E ‘He Taonga Mo o Matou Tipuna (A gift handed down by our ancestors): an indigenous approach to social work supervision’ (1999) Social Work Review 11(4) 7–11. Weijers I ‘Requirements for communication in the courtroom: a comparative perspective on the Youth Court in England/Wales and the Netherlands’ (2004) 4(1) Youth Justice 22–31.

Reports

Maxwell G et al. Achieving Effective Outcomes in Youth Justice: Final Report (2004) ­Wellington: Ministry of Social Development.

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McLaren K Alternative Actions that Work: A Review of the Research on Police Warnings and Alternative Actions to Children and Young People (2010) Wellington: New Zealand Police Youth Services Group. Ministry of Justice, Wellington Trends in Child and Youth Prosecutions in New Zealand 2002–2011 (2012) available at http://www.justice.govt.nz (accessed 13 January 2016). Puao-te-ata-tu (Day Break): The Report of the Ministerial Advisory Committee on a Maori Perspective for the Department of Social Welfare (1988) Wellington: Department of ­Social Welfare, available at https://www.msd.govt.nz/documents/about-msd-and -our-work/publications-resources/archive/1988-puaoteatatu.pdf (accessed 13 January 2016). Youth Advocates in Aotearoa New Zealand’s Youth Justice System: Exploring the Roles, Functions and Responsibilities of Lawyers for Young People (2012) University of Auckland: New Zealand Law Foundation/Faculty of Law, available at http://www .childlawvoices.com (accessed 13 January 2016).

Legislation

Children, Young Persons and Their Families Act 1989. UN Committee on the Rights of the Child, General Comment No. 12: The right of the child to be heard (2009, CRC/C/GC/12). United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), adopted by General Assembly resolution 40/33 of 29 November 1989.

Miscellaneous

Becroft A (Principal Youth Court Judge of New Zealand) ‘All the World is Watching’: Reflections on the First World Congress on Juvenile Justice, Geneva, Switzerland, January 2015’ 69 Court in the Act 1–2, available at http://www.youthcourt.govt.nz (accessed 13 January 2016). Kaipuke Consultants Evaluation of the Early Outcomes of Nga Kooti Rangatahi (2012) Wellington: Ministry of Justice. Ministry of Justice A New Way of Working for District Courts in Auckland (2012), available at http://www.govt.nz (accessed 13 January 2016). Ministry of Justice Research Team, Justice Sector Strategy Youth Court research: experiences and views of young people, their families and professionals (2011) Wellington: Ministry of Justice, available at http://www.justice.govt.nz (accessed 13 January 2016). Principal Youth Court Judge Becroft ‘Appointment and review procedures for youth advocates’ (2006), available at https://www.lawsociety.org.nz. This is an unpublished document addressed to relevant judges, lawyers and court personnel. See Te Awatea Violence Research Centre Evaluation of Family Group Conference P­ ractice & Outcomes: Scoping Phase (2014) Commissioned by Child, Youth and F­amily ­Services, Christchurch: University of Canterbury, available at http://www.cyf.govt .nz (­accessed 13 January 2016).

chapter 18

Children’s Rights and Australian Migration Law: Are they Mutually Exclusive? Anna Copeland Abstract This chapter looks closely at the rights of children with regard to migration law and specifically the legal situation in Australia. Using the framework of the crc, the chapter analyses the political and legislative developments in Australia in order to illustrate the tensions between children’s rights and domestic desires to control migration and national borders. It questions whether the treatment of children is contrary to ­Australia’s obligations under the crc. In raising these questions it looks closely at the long-­standing use of immigration detention and the more recent ‘deterrent policies’ and their effects on children and their families. In doing so, the chapter teases out the fundamental nature of the breach of children’s rights that Australian migration law represents.

1 Introduction Across the world, the issue of how a country treats prospective migrants, and more specifically asylum seekers, has become one of central importance, particularly in the face of ever-increasing forced migration. Many governments assert that a nation state has the right to protect its borders and control who enters and remains within its territory. However, to what extent are we prepared to breach the human rights of those seeking entry in the name of an orderly migration system? This chapter looks closely at the rights of children with regard to migration law, specifically the legal framework affecting asylum seekers in Australia. It examines the tussle of competing rights in this area and asks if the rights of children are adequately protected. 2

Migration Law and the Rights of the Child

The aim of any migration framework is to regulate who enters a country. In deciding how this is done, the rights of individual migrants compete with © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_019

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concepts regarding what is in the national interest, but the balance between the rights of those seeking to migrate and the wider community is often skewed in favour of the latter. While the rights of children have generally developed substantially across the globe in the last few decades, it is tempting to wonder if this development has had any substantial impact on migration law and policy. Certainly, in the case of Australia, it is easy to conclude that any developments in the area of children’s rights ‘have largely bypassed immigration and citizenship law’.1 In the area of human rights, the issue of competing rights has received long and detailed consideration. The question is often posed in terms of when it is justifiable to limit or restrict the human rights of an individual or group of individuals. In General Comment 31, the Human Rights Committee (hrc) stated that, where limitations or restrictions are made, States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right.2 This is further set out in the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights.3 According to these principles, a limitation on an individual’s human rights is only permissible if the limit is necessary to pursue a specific aim, is proportionate, and is consistent with the essence of the particular right concerned. It is not suggested here that the rights of children should always prevail in this exercise of legal decision-making; however, in order for children’s rights to be considered meaningfully, those rights need to be clearly identified and then weighed in equal measure with the other rights in question. The failure of legal systems to identify children’s rights properly, let alone deal with them in this way, results in decision-making that routinely breaches the rights of children and young people, and nowhere is this more evident than in the area of migration law. 1 Crock M, Kenny MA & Allison F ‘Children and Immigration and Citizenship Law’ in Monahan G & Young L (eds) Children and the Law (2008) 239. 2 hrc, General Comment No. 31 on the nature of the general legal obligation imposed on States Parties to the Covenant, un Doc CCPR/C/21/Rev.1/Add.13 [6] (2004). 3 un Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, un Doc E/CN.4/1985/4, Annex (1985).

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The Convention on the Rights of the Child (crc) affords children both rights and protections; the rights arise from their status as human beings, and the protections, from their particular vulnerabilities as children.4 The protections amplify the rights, in that the obligations on the State Party to protect and promote the rights become more specific and more onerous due to the fact that those holding the rights are children and, as such, have certain vulnerabilities. 2.1 Failures of the Australian Migration System There are many examples where the Australian migration system simply fails to acknowledge and protect the rights of children. One of the central rights of the crc is the right to be heard;5 however, this is routinely overlooked by the Australian migration system. For example, asylum-seeking families are often assessed purely on the evidence of the parents, even though the children may have a stronger claim of persecution. This issue was taken up by the Committee on the Rights of the Child in its concluding observations on Australia’s fourth periodic report on its implementation of the crc. In noting that the Migration Act6 contains no provision for compulsory separate interviewing of migrant children, the Committee recommended that the State party take all necessary measures to ensure that the Migration Act 1958 guarantees respect for the views of the child at all stages of the migration process, including in situations of irregular migration.7 In many ways the migration system turns its back on the needs and demands of children, particularly if responding to these needs would result in some rights or protections flowing to adults associated with the child. There is a pervasive tendency to shut out the claims of children because of concerns that children can be used by accompanying adults to manipulate the sensitivities of a receiving state so as to advantage the adults in question.8 4 5 6 7

The Convention on the Rights of the Child (1989) 1577 unts 3 Preamble. Art. 12 crc. The Migration Act 1958 (Cth). Committee on the Rights of the Child, Sixtieth session, 29May-15 June 2012, Consideration of reports submitted by State parties under article 44 of the Convention, Concluding observations: Australia, CRC/C/AUS/CO/4, paras. 33 and 34. 8 Crock M, Kenny MA & Allison F ‘Children and Immigration and Citizenship Law’ in Monahan G & Young L (eds) Children and the Law (2008) 238–55, 239.

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The assumption that children are used for migration advantage by the adults accompanying them is rarely based on evidence: as was the case when Australian authorities said that asylum seekers were ‘throwing their children overboard’ in order to force their own rescue by Australian authorities, a claim that was found later to be entirely false.9 However, the fear that respecting the rights of children would give an unfair advantage to the adults involved is not limited to Australia but encountered in many different jurisdictions.10 The problem with this approach is that it does not give sufficient weight to the rights of the child; instead it focuses on the advantage to the parents or adults and the associated impact it is perceived to have on the migration framework. While both of these factors may be important ones for public-policy reasons, and therefore legitimate considerations for a court or decision- maker, a child rights perspective would also articulate the rights of the child as an important factor, acknowledge that the state has an obligation to protect those rights wherever possible, and then weigh them against those other factors. 3

Rights Independent of Parental Choices

One of the most interesting aspects of the crc, and the one perhaps most often overlooked in Australia, is the idea that children have rights independent of the choices of their parents or guardians. Authority for this argument comes from article 2(2) of the Convention. Article 2 begins with a provision against discrimination, one reflected across almost all international human rights treaties in similar terms. Article 2(1) of the crc expresses it as such: 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. The most notable difference from similar provisions in other human rights treaties is the reference to the attributes of both the parent and the child. 9

10

Australian Parliament, Senate Select Committee for an inquiry into a certain maritime incident 2002, available at https://www.aph.gov.au/binaries/senate/committee/­maritime _incident_ctte/report/report.pdf (accessed 12 January 2015). For example, the us case of Cabrera-Alvarez v Gonzales, 423 F3d 1006 (9th Cir 2005).

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F­ urthermore, article 2(2) provides that all appropriate measures should be taken to ensure that children are protected from ‘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’. This subsection goes beyond the issue of discriminatory application of the rights within the Convention; it also articulates the link between the status, activities and beliefs of parents/guardians and the impact these may have on the children in their care. Most notable in this distinct second limb is the fact that it refers only to the parents, guardians or families and does not mention the child him- or herself. The effect of this is that parties who are signatory to the Convention must ensure not only that the rights contained within it are afforded without discrimination; they must also ensure they are afforded despite the status of the child’s parent or guardians. In addition, subsection 2 refers not only to the status, expressed opinions and beliefs of the parents but also their activities. By including the word ‘activities’ the crc broadens the State Parties’ obligations again. They must ensure that they afford all rights to the child no matter what the activities of the parent. For example, in the case of a parent convicted of a criminal offence and imprisoned, the child still has the right to family11 and to know and be cared for by his or her parent despite the activities of the parent. This means that there is an obligation on the State Party to put in place measures to protect the rights of the child, such as ensuring that the child can visit his or her parent regularly.12 Furthermore, if sentencing considerations regarding the parent – such as punishment, rehabilitation or protection of the community – are less significant than the harm done to the child by denying the right to family, then an approach which truly considers the rights of the child might be to minimise or avoid the term of imprisonment for the parent. This approach sits uncomfortably with the Australian legal system, which is likely to see the outcome as unreasonably lenient on the parent. This is because, when considering the sentence for the parent, the current legal framework seems to view it as a simple binary equation in which the rights of the parent must be weighed against the rights of the broader community. However, to consider the rights of the child properly, the legal system needs to acknowledge and assess the consequences for the child. More importantly, the child holds these rights independently of the activities of their parent.13 The State Party, through the legal system and courts, should assess the impact on 11 12 13

Arts. 9 and 16 crc. Arts. 3 and 4 crc. Art. 2(2) crc.

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the child and any consequential breach of his or her rights as a consideration to be taken into account in the same way as community safety would be. 3.1 Prohibition on Punishment Another notable aspect of article 2(2) is that it includes a prohibition on punishing the child on the basis of the status, activities, expressed opinions or beliefs of his or her parents, legal guardians or family members. The Travaux Preparatoires of the crc does not explain the inclusion of the word ‘punishment’ in any detail; however, it makes it clear that the second subsection of article 2 was directed at actions taken against children due to the activities of those adults associated with them.14 Whether or not immigration detention is described as an administrative measure (which it is by the Australian government), there is little doubt that its impact is punitive, particularly in the case of children.15 The continued detention of children due to the migration decisions (and actions) of their parents is therefore a breach of article 2(2). 3.2 Unaccompanied and Separated Children The discussion has focused on children who arrive with parents; however, many arrive without them. Unaccompanied and separated children are particularly vulnerable and entitled to protections and safeguards that have been set out by the Committee on the Rights of the Child in General Comment 6.16 However, the Australian migration system has little regard for the special status of these children, who are subject to the same regime of detention, without time limits or judicial review, as adults are. The process of guardianship is also fraught, in that the Minister for Immigration is the guardian of unaccompanied children, although these responsibilities are delegated to senior departmental staff. It is important to note that departmental staff have no particular expertise in care and protection of children, an issue raised by the Australian Human Rights Commission in its inquiries both into immigration and detention.17 14 15

16

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Doek JE & Cantwell N (1992) The United Nations Convention on the Rights of the Child: A Guide to the Travaux Préparatoires 141–9. See Human Rights and Equal Opportunity Commission A Last Resort? National Inquiry into Children in Immigration Detention and The Forgotten Children: National Inquiry into Children in Immigration Detention. un Committee on the Rights of the Child, General comment No. 6 (2005) on the ­treatment of unaccompanied and separated children outside their country of origin, 1 September 2005, CRC/GC/2005/6. See Human Rights and Equal Opportunity Commission A Last Resort? National Inquiry into Children in Immigration Detention and The Forgotten Children: National Inquiry into Children in Immigration Detention.

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Since 2009, the Department of Immigration has contracted ‘specialist pastoral care services for unaccompanied minors’,18 which is a welcome development; however, the decision-making regarding these children remains with the departmental staff. The Committee’s General Comment No. 6 makes it clear that ‘[a]gencies or individuals whose interests could potentially be in conflict with those of the child’s should not be eligible for guardianship’. This arrangement drew judicial attention in the case of Plaintiff M106 v Minister for Immigration19 in which it was argued that the removal of a child asylum seeker from Australia to Malaysia at the direction of the Minister was not lawful, given his conflicting role as the child’s guardian. The High Court said that while this was possible under the existing legislative framework, it would require that the Minister set out his intention to do so in writing (something he had not done in this case). These issues were also raised by the Committee on the Rights of the Child. In its 2012 Concluding Observations on Australia, it expressed deep concern about ‘[t]he high risk of conflict of interest where the legal guardianship of unaccompanied minors is vested with the Minister of Immigration and Citizenship who is also responsible for immigration detention and determinations of refugee and visa applications’.20 The Committee urged Australia to be expeditious in establishing an independent guardianship or support institution for unaccompanied immigrant children. A child rights approach considers the rights of the child in equal measure to the other competing rights in any dispute. It does not necessarily entail that children’s rights will be given priority – simply that they will be considered meaningfully. This requires that they are identified and articulated: ‘a precondition to the adoption of a rights-based approach is an acceptance that children have rights’.21 In the context of migration law, what is most instructive is the notion that children are the holders of rights and that the state has a responsibility to protect those rights considered independently of parental action. 18

19 20

21

Department of Immigration and Border Protection, Submission No. 45 to the National I­ nquiry into Children in Immigration Detention, 51, available at https://www.­humanrights .gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-childrenimmigration -detention-2014-0 (accessed 5 June 2015). Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] hca 32 (31 August 2011). Committee on the Rights of the Child, Sixtieth session, Consideration of reports ­submitted by State parties under article 44 of the Convention, Concluding observations: Australia, CRC/C/AUS/CO/4, para. 80. Tobin J ‘The development of children’s rights’ in Monahan G & Young L (eds) Children and the Law (2008) 23–53.

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Children’s Rights and Detention

Perhaps the most startling example of a limit on children’s rights in the Australian context is the regime of mandatory immigration detention. Under the Convention, detention should only ever be used as a measure of last resort and for the shortest possible time.22 This is also mirrored within the Australian ­Migration Act 1958, specifically section 4AA, which states that, as a principle, minors should ‘only be detained as a measure of last resort’. However, in ­Australia anyone arriving without a visa is routinely detained, and this includes children.23 In July 2013, almost 2,000 children were in immigration detention facilities and alternative places of detention in Australia. Although the number has dropped since then, in September 2014 there were still more than 600.24 4.1 Failure to Afford Special Protections While adults and children are treated alike under the Australian immigration detention regime, in the international human rights framework there is a ­significant difference between the detention of adults and that of children. While any detention, whether of an adult or a child, cannot be arbitrary and must be established by law and be reviewable,25 there is increased protection for minors in that detention should only be used as a last resort and for the shortest possible time.26 In addition, there is a fundamental difference as a logical consequence of the point argued above, namely that children hold rights independently of the actions of their parents or guardians. If a child is in detention due to the fact that he or she has been brought to a country by others, then the detention is by nature arbitrary. This is because it has been imposed ­without consideration of what agency the child had in any of the steps or circumstances which led to the detention. This is detention imposed on an individual with no reference to the actions or choices of that individual, and as such it is, arguably, arbitrary. Under the immigration detention system in Australia, children are routinely held for months, even years. Despite section 4AA of the Migration Act, immigration detention in Australia is not a measure of last resort or for the shortest possible time. In the context of remand in the juvenile justice system, the 22 23 24 25 26

Art. 37(b) crc. The Migration Act 1958 (Cth) section 189. Immigration Detention Statistics Summary, 30 September 2014, available at http://www .immi.gov.au (accessed 10 January 2015). International Covenant on Civil and Political Rights (1966) 999 unts 171 arts. 9 and 10. Art. 37(b) crc.

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Committee on the Rights of the Child has provided that the law should ‘clearly state’ the conditions that ‘are required to determine whether to place or keep a child in pretrial detention, in particular to ensure his/her appearance at the court proceedings, and whether he/she is an immediate danger to himself/herself or others’.27 In the circumstances of unaccompanied migrant children, the Committee has been more specific: In application of article 37 of the Convention on the Rights of the Child and the principle of the best interests of the child, unaccompanied or separated children should not, as a general rule, be detained. Detention cannot be justified solely on the basis of the child being unaccompanied or separated, or on their migratory or residence status, or lack thereof.28 In the Australian context, children are detained because they do not hold a valid entry visa. This detention is imposed administratively without consideration of individual circumstances, it is not reviewable and it is indefinite in that no one knows when it will end. The hrc has described it as arbitrary detention and a breach of Australia’s international obligations.29 There is surprisingly little Australian jurisprudence specifically on the issue of detaining children under migration law. Section 4AA gives little assistance as it merely affirms a principle, while its practical use in legal argument on behalf of children remains unclear. Certainly, it has yet to be successfully used in Australian courts to end the detention of a child. 4.2 Best Interests and Detention The Australian government’s approach to the detention of children was illustrated by the case of B & B.30 It was an appeal from a single judge of the Family Court of Australia. The case was brought on behalf of five young children being detained in Baxter Immigration Detention Centre in South Australia. The issue was raised as to whether it was in the children’s best interests to remain in detention. The Full Family Court found on the evidence that it 27 28 29

30

General Comment No. 10 on children’s rights in juvenile justice (2007) CRC/C/GC/10 at 80. General Comment No. 6 on the treatment of unaccompanied and separated children outside their country of origin (2005) CRC/GC/2005/6 61. A v Australia (1993), (560/1993) 30 March 1997, un Doc. CCPR/C/59/D/560/1993; Baban v Australia (2003) un Doc CCPR/ C/78/D/1014/2001; C v Australia (2002) un Doc CCPR/ C/76/D/900/1999; E v Australia (2006) un Doc CCPR/C/87/D/1050/2002. B & B and Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA.

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was in the ­children’s best interest to be released. This would hardly come as a surprise to anyone who has visited an immigration detention centre or read either of the inquiries into children in detention undertaken by the Human Rights and Equal Opportunity Commission (now Australian Human Rights Commission).31 Indeed, the evidence that remaining in detention was detrimental to their best interests was compelling: it included evidence that one of the children had attempted suicide, cut the word ‘freedom’ into the flesh of his arm, and sewn his lips together while in detention. The evidence concerning the oldest child was that ‘he is at serious risk of long-term psychological harm and damage should he remain … [t]o stay is life-threatening’.32 Of all the children, the following evidence was given: ‘[T]he process of beginning some restoration of the children’s psychological health and wellbeing needs to occur urgently and should start with [their] immediate release from the Detention Centre into the Community.’ Despite this compelling evidence, the Minister for Immigration argued that the release of these children was not in their best interests. The Minister argued that the children should not be released because they had come to be in detention from ‘parental choice’. He argued that releasing them from detention would separate them from their parents, who would remain in detention. The Minister also argued that there were insufficient arrangements for the children’s release and, given that they would probably be eventually ­re-detained and deported from Australia, their release would ‘raise false hopes in their minds’ about the possibility of their remaining in Australia.33 4.3 Parental Choice Misconstrued The reference to parental choice is interesting in the light of Australia’s international obligations under article 2(2) of the crc. The obligations of the Australian government under the Convention are to the children, regardless of the actions of parents or guardians. The assertion that the children could not release the children because it would separate them from their parents is also interesting, given that it was within the power of the Minister himself to release the children’s parents along with the children.34 A signatory to the crc, such as Australia, has agreed under article 4 to undertake all appropriate 31 32 33 34

See fn. 17. B & B and Minister for Immigration and Multicultural and Indigenous Affairs [2003] ­FamCA 80. B & B and Minister for Immigration and Multicultural and Indigenous Affairs [2003] ­FamCA 33. The Migration Act 1958 s. 197AB.

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l­egislative, administrative and other measures for the implementation of the rights recognised in the Convention.35 The State Party cannot then use one article to justify the breach of another when it is within its power to meet both articles.36 The Family Court found that the children’s best interests were better served by releasing them from immigration detention. The Australian government then took the case on appeal to the High Court.37 The latter considered the finding of the Family Court and the evidence about detention, noting there had been ‘a series of public reports, tabled in the Australian Parliament, which address the suggested defects of the system of mandatory immigration detention followed in Australia, and specifically as such detention affects children’.38 However, the Court found that the Migration Act 1958, which explicitly allows the detention of children, could not be overridden by the Family Law Act 1975 or by Australia’s international obligations under the Convention. As Justice Kirby points out in making this decision, detention is part of a deliberate policy of the Australian Parliament, applicable without differentiation between alien adults and children. […] It is so even if it brings Australia into contravention of its obligations under international law.39 So, contrary to Australia’s international obligations, the power to detain children remains and there is little or no ability to challenge this in the courts. The point here is that detention should be used only as a last resort for children, notwithstanding the choices of their parents (assuming that their parents had a choice – which in cases of asylum is questionable). The best interests of those children should have been the paramount consideration; instead, the perceived integrity of the Australian migration system was prioritised. An approach truly in the interests of child rights would start from the position that detention should only ever be used as a last resort and for the shortest possible time – it would then compel the Australian government to consider the ways in which these obligations could be met. The B & B case is now over ten years old; however, little has improved. While the previous government made efforts to release children and families into 35 36 37 38 39

Art. 4 crc. Vienna Convention on the Law of Treaties (1969) 8 ilm 679. Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] hca 20. Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] hca 20, 365. Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] hca 20, 136 and 171.

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community-based detention and other arrangements, these attempts faltered. Despite a commitment in October 2010 that all families and children would be moved into community-based accommodation, by July 2013 there remained almost 2,000 children in immigration detention.40 Since that time, the policies of the current conservative government have substantially reduced the number of boat arrivals, which in turn has reduced the numbers of children being held in immigration detention. However, those who are there are spending longer in detention. The average period of time for people held in immigration detention facilities has steadily increased, and had reached 450 days by January 2015.41 5

Deterrence Policy and Children’s Rights

One of the most problematic developments in the Australian context is the emergence of deterrence as a policy objective in the treatment of asylum seekers. In 2011, the Australian government, under enormous political pressure due to the ever-increasing numbers of asylum seekers arriving by boat, announced it would be sending these arrivals to Malaysia to be processed by the United Nations High Commission for Refugees.42 The reasoning was that if asylum seekers knew they would simply be turned around and sent to Malaysia they would not make the dangerous journey by boat to Australia. In return, Australia agreed to increase the numbers of refugees from Malaysia being resettled in Australia. The arrangement included the transfer of children, some of them unaccompanied minors. The Minister for Immigration, Chris Bowen, was unrepentant on this point, explaining on Australian television: I’ve been very clear that you need to send a strong message. I don’t want unaccompanied minors, I don’t want children getting on boats to come to Australia thinking or knowing that there is some sort of exemption in place. I never want to go through and I never want our nation to go through what we went through in December and in months following: burying

40 41 42

Immigration Detention Statistics Summary, 30 September 2014, available at http://www .immi.gov.au (accessed 10 January 2015). Immigration Detention and Community Statistics Summary, 31 January 2015, available at http://www.immi.gov.au (accessed 29 May 2015). Thompson J ‘Australia, Malaysia sign refugee deal’ abc News 25 July 2011.

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children as a result of a boat accident. And it is inevitable that that will occur again unless we break the people smugglers’ business model.43 The arrangement never took effect, as it was challenged in the High Court in the case of M70/M106.44 In this case the High Court found that the declaration made by the Minister under section  198A of the Migration Act 1958 that specified Malaysia as an appropriate country to send asylum seekers was invalid. Section 198A(3) provided that the Minister may declare in writing that a specified country meets a range of criteria, including providing access to processing, protection for those both seeking asylum and those found to be refugees, and meeting the relevant human rights standards in providing that protection. The Court found that the declaration made under this section was invalid because the Minister could not have been satisfied that the criteria of that section had been met.45 Furthermore, this case dealt with M106, who was an unaccompanied child; as discussed above, the Court looked at the guardianship arrangements for such children and found that the proper process had not been followed. The result of the decision was that the Australian government could not implement the ‘Malaysian Solution’, and, with few remaining options in the face of mounting political pressure, it convened an Expert Panel on Asylum Seekers. This panel brought together three men from diverse backgrounds: one a long-time refugee advocate from a ngo dealing with the victims of torture trauma, another a retired air force chief, and the third a professor of national security policy and former diplomat. While the terms of reference were broad, in the opening passages of the final report the Expert Panel described the central issue as being to assess ‘the policy options available … to prevent asylum seekers risking their lives on dangerous boat voyages to Australia’.46 The report went on to identify major migration drivers as ‘push factors’ and ‘pull factors’.47 Push factors are things that drive people out of their home country; the ­Expert Panel identifies them as instability or violence, lack of opportunity, and disaster. Pull factors are those aspects of the destination countries that entice migrants, for example economic opportunity or political stability. The Expert 43 44 45 46 47

Lateline: ‘Immigration Minister on no advantage policy’ television broadcast, Australian Broadcasting Corporation (abc), 11 June 2011. M70/M106 v Minister for Immigration and Citizenship [2011] hca 32. M70/M106, see para. 135. Expert Panel on Asylum Seekers Report of the Expert Panel on Asylum Seekers (August 2012). Expert Panel on Asylum Seekers Report of the Expert Panel on Asylum Seekers 60.

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Panel pointed out that ‘while those forced to leave in such circumstances may have little choice about their initial destination, push and pull factors can contribute to onward movement from countries of first asylum (cfas) or transit countries, creating new (and mixed) migration flows’.48 They conclude that [t]he single most important priority in preventing people from risking their lives on dangerous maritime voyages is to recalibrate Australian policy settings to achieve an outcome that asylum seekers will not be advantaged if they pay people smugglers to attempt dangerous irregular entry into Australia instead of pursuing regular migration pathways and international protection arrangements as close as possible to their country of origin.49 This passage foreshadows what was to be a key recommendation of the Expert Panel’s report, the ‘no advantage’ principle,50 which purported to ensure that no benefit is gained by circumventing regular migration pathways. This recommendation was quickly taken up by the Minister for Immigration, who confirmed that it would include children and unaccompanied minors.51 The exact parameters of the ‘no advantage’ principle were uncertain, and the president of the hrc complained that it was ‘an abstract concept without legal meaning’ when she gave evidence before a senate committee two months later.52 The government did not specify how long people would wait, saying simply that it would not be a shorter time than they would have waited had they not come to Australia by boat and instead waited for an offshore place; in the meantime, they would be unable to sponsor family members to join them in Australia, work, or, in many cases, access social security. The Jesuit Refugee Service described the policy as ‘cruel, inhumane and immoral’.53 In response to these criticisms, the Expert Panel on Asylum Seekers explained that the intention was to discourage people from getting on boats and making the dangerous journey to Australia. In an interview one of the members said: 48 49 50 51 52 53

Expert Panel on Asylum Seekers Report of the Expert Panel on Asylum Seekers 8. Expert Panel on Asylum Seekers Report of the Expert Panel on Asylum Seekers 9. Expert Panel on Asylum Seekers Report of the Expert Panel on Asylum Seekers 14. The 7.30 Report: ‘Immigration Minister responds to asylum seeker report’ television broadcast, abc 13 August 2012. The 7.30 Report: ‘Immigration Minister defends Government’s asylum policy’ television broadcast, abc, 16 October 2012. Jesuit Refugee Service Australia ‘No advantage policy inhumane and cruel’.

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Here is a legitimate ethical dilemma: should Australia prevent it or should they not? The Expert Panel concluded that there [were] too many people dying on boats and that Australia had a responsibility to discourage such journeys.54 The idea that these policies are humanitarian in that they are really directed at stopping deaths at sea became the oft-repeated mantra of the Australian government. In July 2013, the government’s position hardened further with the introduction of the ‘png Solution’, which saw all those arriving by boat being sent to Papua New Guinea (and later Nauru) with the promise that even if they were found to be refugees they would have no chance of resettling in Australia.55 When a­ nnouncing the policy, the prime minister claimed the intention was to undermine the business model of the people smugglers to ‘avoid the terrible consequences of this trade’.56 In the lead-up to the Australian federal election on 7 September 2013, ­political parties rolled out tougher and tougher policies with regard to asylum seekers, leading some commentators to call it a ‘race to the bottom’.57 Parties restated their commitment to deterrence policies designed to break the ‘business model of the smugglers’ and ‘stop the boats’. The election saw a change in government and brought with it the re-introduction of temporary protection visas and a policy of turning asylum-seeker boats back to Indonesia or Malaysia. 5.1 Jurisdictional Issues The policy approach, outlined above poses many difficulties for the rights of children. From a purely legal perspective there are difficulties with reconciling this approach with Australia’s international obligations. Under the crc, Australia has obligations to ‘each child within [its] jurisdiction’.58 While there can be some discussion as to whom this might include, it clearly does not include those children anywhere in southeast Asia or beyond who might be considering getting on a boat to Australia in the future with the intention of seeking asylum; but it undoubtedly does include those children who do arrive on the 54 55 56 57 58

Right Now ‘Paris Aristotle on the Asylum Seeker Expert Panel Report’ (6 December 2012) videotape. The Economist ‘Australia’s Boat People, the png Solution’ 27 July 2013. Hall B ‘Queries over png deal costings’ Sydney Morning Herald 21 July 2013. McAdam J ‘Australian parties in “race to the bottom on asylum seeker policy”’ cnn 4 ­September 2013. Art. 2(1) crc.

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shores of Australia. The Committee on the Rights of the Child has made this very clear in its general comment on the Treatment of Unaccompanied and Separated Children outside their Country of Origin: ‘State obligations under the Convention apply to each child within the State’s territory and to all children subject to its jurisdiction (art. 2).’59 It is arguable that boats making their way to Australia are within the jurisdiction of Australia under the Convention. This is especially the case if they reach Australian waters or are boarded by Australian officials, because then the people on them, including children, become subject to the decision-making of Australian officials and the policy and legislation that stands behind it. This means that Australia must extend to those arriving by boat all of the human rights contained within its international obligations. It is certainly not acceptable, in international law, for Australia to limit or breach the rights of those to whom they owe an obligation in an attempt to discourage other children and families outside their jurisdiction. 5.2 Inconsistent with the Convention These deterrence policies, including the ‘no advantage’ policy, represent serious breaches of the rights contained in the crc. Deterrence policies have meant far longer periods of detention than the norm, with all of the attendant deprivations well-documented both within Australia60 and by the hrc.61 The right to family62 is also breached, since the ‘no advantage’ policy and the reintroduction of temporary protection visas mean there is no family reunion through the humanitarian programme. The right to the highest attainable standard of health,63 education64 and social security65 are all affected by ­prolonged detention and the reduced rights to work and social security for asylum-seeker families in the community. Finally, the overarching right contained in article 22, which provides that Australia must adopt appropriate 59

General Comment No. 6 on the treatment of unaccompanied and separated children outside their country of origin, CRC/GC/2005/6 (2005), 61. 60 See A Last Resort? Inquiry into the Detention of Children. The report is yet to be released, however submissions and expert reports can be found at https://www.humanrights.gov .au/national-inquiry-children-immigration-detention (accessed 10 January 2015). 61 A v Australia (1993), (560/1993) 30 March 1997, un Doc. CCPR/C/59/D/560/1993; Baban v Australia (2003) un Doc CCPR/ C/78/D/1014/2001; C v Australia (2002) un Doc CCPR/ C/76/D/900/1999; E v Australia (2006) un Doc CCPR/C/87/D/1050/2002. 62 Arts. 9 and 16 crc. 63 Art. 24 crc. 64 Art. 28 crc. 65 Arts. 26 and 27 crc.

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measures to make sure all refugee and asylum-seeking children get the protection and humanitarian assistance they need and in order to protect their rights under the convention. This applies whether or not they are accompanied by a family member or travelling alone.66 5.3 Neither Proportionate or in Pursuit of a Legitimate Aim If the aim of deterrence policy is to discourage others from taking the dangerous boat journey to Australia, then international law demands that there be clear evidence that this limitation does in fact achieve that aim and does so in a proportionate way. However, there is no such evidence that these policy decisions being made in Australia have any bearing on the decisions of wouldbe asylum seekers. It is notable that the Report of the Expert Panel on Asylum Seekers was unable to cite any evidence which demonstrates that a policy such as the ‘no advantage’ policy would meet its purported aim.67 It is difficult to properly assess whether these deterrence policies actually had any effect on the number of boats arriving. Shortly after the policies were initiated, the conservative government took power in the election of 2013 and began a more direct policy of turning boats back to fulfil its ‘stop the boats’ election promise. There is little doubt, however, that the ‘stop the boats’ policy has resulted in more loss of life, as unseaworthy vessels are forced to make arduous return journeys. 6 Conclusion Children are the holders of rights but this is barely recognised by the Australian migration legal framework, which breaches those rights daily. Migration decisions are routinely made with little or no consideration of how they will impact on the rights and the lives of children. Far more attention is paid to ensuring that children do not ‘advantage’ migrant adults or ‘encourage’ irregular migration. Public opinion has driven complex political maneuvering in this area, and the attempts to ‘resolve’ the issue have seen ever-escalating breaches of human rights. Of all those affected, children are perhaps the worst-off, ­despite Australia being a party to the crc. This issue demonstrates with painful clarity the vast difference between committing to international obligations and implementing them in good faith.

66 67

Art. 22 crc. Expert Panel on Asylum Seekers Report of the Expert Panel on Asylum Seekers 26.

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A new approach, and one which truly protects the rights of children, must start with a clear acknowledgment that children are the holders of rights. They hold these rights because they are human beings. They are also entitled to particular protections; they have these entitlements because they are children, regardless of where they come from, where they are, or how they came to be there. A child rights approach would individually and meticulously identify and consider the rights of the child and how they are limited or breached by migration law and policy decisions. It would give these rights equal footing with other considerations and not allow them to be undermined by a fear of leniency towards their parents or trumped by a perceived need to maintain the strength and integrity of border security. Most importantly, such an approach would resist the global trend to sacrifice human rights to score political popularity by ‘toughening’ migration laws. A child rights approach would allow migrant children to assert their rights, obtain protection from exploitation and develop to fulfil their potential. Bibliography Books

Detrick S (ed) The United Nations Convention on the Rights of the Child: A Guide to the ‘Travaux Préparatoires’ (1992) Dordrecht: Martinus Nijhoff Publishers.

Chapters in Books

Crock M, Kenny MA & Allison F ‘Children and immigration and citizenship law’ in Monahan G & Young L (eds) Children and the Law (2008) 238–55 Sydney: LexisNexis Butterworths. Tobin J ‘The development of children’s rights’ in Monahan G & Young L (eds) Children and the Law (2008) 23–53 Sydney: LexisNexis Butterworths.

International Legal Material

International Covenant on Civil and Political Rights (1966) 999 UNTS 171. Convention on the Rights of the Child (1989) 1577 UNTS 3. General Comment No. 10 on children’s rights in juvenile justice (2007) CRC/C/GC/10. General Comment No. 6 on the treatment of unaccompanied and separated children outside their country of origin (2005) CRC/GC/2005/6. General Comment No. 31 on the nature of the general legal obligation imposed on states parties to the covenant (2004) UN Doc CCPR/C/21/Rev.1.

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Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (1985) UN Doc E/CN.4/1985/4. Vienna Convention on the Law of Treaties (1969) 8 ILM 679.

Legislation

Migration Act (Cth) 1958.



Cases Australian Cases

B & B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] ­FamCA 451. Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20. M70/M106 v Minister for Immigration and Citizenship [2011] HCA 32.



United States Cases

Cabrera-Alvarez v Gonzales, 423 F3d 1006 (9th Cir 2005).

International Cases

A v Australia (1993), (560/1993) 30 March 1997, UN Doc. CCPR/C/59/D/560/1993. Baban v Australia (2003) UN Doc CCPR/ C/78/D/1014/2001. C v Australia (2002) UN Doc CCPR/C/76/D/900/1999. E v Australia (2006) UN Doc CCPR/C/87/D/1050/2002.

Internet Sources

Australian Parliament, Senate Select Committee for an Inquiry into a Certain Maritime Incident (2002), available at http://www.aph.gov.au/Parliamentary_Business/­ Hansard/senate/committee/SmaritIncNonCurrent (accessed 12 January 2015). Department of Immigration, Immigration Detention Statistics Summary, 30 September 2014, available at http://www.immi.gov.au (accessed 10 January 2015). Expert Panel on Asylum Seekers Report of the Expert Panel on Asylum Seekers (2012), available at http://apo.org.au/research/report-expert-panel-asylum-seekers (accessed 11 January 2015). Rights Human and Equal Opportunity Commission A Last Resort? Inquiry into the Detention of Children (2004), available at https://www.humanrights.gov.au/ publications/last-resort-national-inquiry-children-immigration-detention (accessed 10 January 2015). Jesuit Refugee Service Australia, ‘“No advantage” policy cruel, inhumane, and immoral’, available at http://www.jrs.org.au/no-advantage-policy-cruel-inhumane-and -­immoral (accessed 14 January 2015).

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Right Now Paris Aristotle on the Asylum Seeker Expert Panel Report (2012) videotape, available at http://rightnow.org.au/topics/asylum-seekers/video-interview-­paris -aristotle-on-the-asylum-seeker-expert-panel-report (accessed 11 January 2015). Hall B ‘Queries over PNG deal costings’ Sydney Morning Herald 21 July 2013, available at http://www.smh.com.au/federal-politics/political-news/queries-over-png-­deal -costings-20130720-2qb2d.html (accessed 13 January 2015). McAdam J ‘Australian parties in “race to the bottom on asylum seeker policy”’ CNN  4  September 2013, available at http://edition.cnn.com/2013/09/03/opinion/­ australia-asylum-seekers-mcadam/index.html (accessed 11January 2015). Thompson J ‘Australia, Malaysia sign refugee deal’ ABC News 25July 2011, available at www.abc.net.au/news/2011-07-25/malaysia-signs-refugee-deal/2809512 (accessed 13 January 2015). The Economist ‘Australia’s Boat People, the PNG Solution’ 27 July 2013, available at http://www.economist.com/news/asia/21582320-shadow-looming-election-fallsdesperate-asylum-seekers-png-solution (accessed on 24 August 2013).

Television Broadcasts

The 7.30 Report: ‘Immigration Minister defends government’s asylum policy’ Australian Broadcasting Corporation, 16 October 2012. The 7.30 Report: ‘Immigration Minister responds to asylum seeker’ Australian ­Broadcasting Corporation, 13 August 2012. Lateline: ‘Immigration Minister on no advantage policy’ Australian Broadcasting ­Corporation, 11 June 2011.

chapter 19

Unaccompanied and Unprotected: The Systemic Vulnerability of Unaccompanied Migrant Children in South Africa Kirsten Anderson, Kara Apland and Elizabeth Yarrow1 Abstract While little is known about the number of unaccompanied child migrants to South Africa, it is clear that a complex interplay of catalytic factors compels children to pursue greater security and opportunity in the country. Once they arrive, a tightly restricted immigration system, an overburdened and poorly functioning asylum system, and an under-resourced and unsuitable child protection system, leave them extremely vulnerable to arrest, detention, exploitation and abuse. This chapter examines how unaccompanied migrant children are impacted by these legal frameworks and the government policies driving them, particularly in light of international standards contained in the crc. It draws upon data collected as part of an eu-funded project, ‘Ending unlawful deprivation of liberty of women and children in South Africa’, completed by Coram Children’s Legal Centre and the South Africa-based Legal Resources Centre. Through analysis of case data collected during the project’s legal assistance pilot and in-depth interviews conducted with migrants themselves, the chapter aims to identify the broad effects of migration control on children and assesses whether and how immigration, refugee and child protection systems increase children’s vulnerability to detention as well as other violations of their basic rights.

1 Introduction The number of unaccompanied migrant children2 entering and living in South  Africa is unknown. Due to scarce and poorly maintained migration 1 The chapter is based on research carried out for a larger project examining the protection and detention of migrant women and children in South Africa. Part of the research has been published by Coram Children’s Legal Centre in a report available (online only) at http://www. childrenslegalcentre.com/userfiles/file/Detention_final_draft.pdf. 2 An unaccompanied migrant child is a person under 18 years who is not residing in her or his country of nationality or (if stateless) habitual residence, and is separated from both

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_020

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data,3 the prevalence of informal border-crossing and the lack of documentation among migrants,4 little is known about the reality of migration into South Africa, in particular the situation of unaccompanied child migrants. It is even harder perhaps to establish with any certainty how many asylum-seeking children are in the country. Not only is there a lack of published age-disaggregated data on asylum and information about who is crossing the border and why, but, in the South African context, determining who falls into the category of ‘refugee’ according to international and domestic legal standards is a complicated and necessarily arbitrary task.5 What is clear, however, is that children who migrate to South Africa leave their homes for a range of reasons; a complex interplay of catalytic factors compels them to pursue greater security and opportunity in the country. Once they arrive, a tightly restricted immigration system, an overburdened and poorly functioning asylum system, and an under-resourced and unsuitable child protection system, leave them in an extremely vulnerable position, at risk of arrest, detention, exploitation and abuse. This chapter examines the impact of these systems, and the government policies driving them, on unaccompanied migrant children, particularly in the light of international standards contained in the un Convention on the Rights of the Child (crc).6 The chapter focuses on the broad effects of migration control on children and assesses whether and how immigration, refugee and child protection systems function to increase children’s vulnerability to detention as well as other violations of their basic rights. The analysis presented here, and the data on which it is based, arose out of an eu-funded project, ‘Ending unlawful deprivation of liberty of women and children in South Africa,’ completed by Coram Children’s Legal Centre (London, uk) and the South African-based Legal Resources Centre, from November 2012 to December 2014. During the operational period of this project, data were

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parents and other relatives and is not being cared for by any adult who, by law or custom, is responsible for doing so. This is so regardless of residence status or reason for being out of their country of nationality/habitual residence, and hence includes children who are seeking asylum, children who are refugees, trafficked children and other child migrants. Segatti A ‘Migration to South Africa: Regional challenges versus national instruments and interests’ in Segatti A & Landau L (eds) Contemporary Migration to South Africa: A Regional Development Issue (2011) 12. Segatti A ‘Migration to South Africa: Regional Challenges versus National Instruments and Interests’ in (eds) Segatti A & Landau L Contemporary Migration to South Africa: A Regional Development Issue (2011) 12. See Apland K, Yarrow Y & Anderson K An Unenforceable Law: Policy, Practice and Political Narratives Shaping the Detention and Protection of Migrant Women in South Africa (2015). un Convention on the Rights of the Child 1989, 1577, u.n.t.s 3, 44 (hereinafter, crc).

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collected through a case management system attached to a legal assistance pilot, located in Gauteng (the province of the country’s largest city, Johannesburg) and Musina (a town 18 km south of the Zimbabwean border-crossing and containing one of South Africa’s largest migrant populations). The pilot targeted persons in detention and at risk of detention, and focused on women and children. Most of the 462 pilot participants were accessed in police stations and shelters in Musina and Johannesburg. The data collected (referred to in this chapter as ‘Pilot Project Data’) included background demographic information on each person who was assisted, along with their documentation status, stated reason for entering South Africa, details of arrest and detention (if relevant), and the nature of assistance provided. For reasons which will be explored below, the number of unaccompanied children accessed and assisted (and therefore recorded in the database) was relatively low. The project also included in-depth qualitative research with migrants in Johannesburg and Musina in order to gain an understanding of the unique pathways into (unlawful) detention for migrant women and children and their access to protection within South Africa’s immigration and asylum systems more broadly. This research entailed a literature review of relevant secondary sources; the collection of primary data through in-depth interviews with international organisations working on migration issues, practitioners (including migrant and refugee rights advocates) and government officials; and site visits to shelters and detention facilities. Ninety-five individuals were interviewed in the course of the study, including 43 individuals who entered South Africa as unaccompanied children. 2

Legal Framework

2.1 International Standards Unaccompanied migrant children enjoy protections under international ­human rights law, international humanitarian law and international refugee law. Perhaps the most elaborated legal framework specific to the treatment and protection of unaccompanied migrant children is found in the crc and, in particular, General Comment No. 6 of the un Committee on the Rights of the Child.7 The Convention contains a provision applying specifically to refugee and asylum-seeking children: it requires states to ensure such children ‘receive 7 un Committee on the Rights of the Child, General Comment No. 6 on treatment of ­unaccompanied and separated children outside their country of origin, 1 September 2005, CRC/GC/2005/6.

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appropriate protection and humanitarian assistance in the enjoyment of applicable rights’ in the crc and other international instruments.8 The Committee’s General Comment No. 6 applies not only to children seeking or holding refugee status but all unaccompanied and separated migrant children, regardless of their legal status or reasons for crossing an international border.9 It affirms that the Convention’s rights apply to all children within a State Party’s territory, including asylum-seeking, refugee and other migrant children.10 It elaborates on how these standards apply particularly to migrant children, details the obligations of State Parties to provide for these children, and sets out options for identifying and implementing a ‘durable solution’ for unaccompanied migrant children.11 2.2 South Africa’s Child Protection System The primary legal framework for the protection of unaccompanied migrant children in South Africa is the Children’s Act 2005, a general law containing child welfare provisions that apply explicitly to all children regardless of their legal status.12 The Act provides a protective legal framework and is widely regarded as compliant with South Africa’s international human rights obligations.13 The Act’s child welfare provisions apply to unaccompanied children (up to 18 years of age) or migrant children who are otherwise identified as being ‘in need of care and protection’.14 According to the Act, such children should be referred to a social worker for investigation and, if necessary, provided with support.15 A child will be deemed to be ‘in need of care and protection’, where (inter alia) he or she has 8 9

Art. 22 crc. un Committee on the Rights of the Child, General Comment No. 6 on treatment of unaccompanied and separated children outside their country of origin, 1 September 2005, CRC/GC/2005/6, para. 5. 10 un Committee on the Rights of the Child, General Comment No. 6 on treatment of unaccompanied and separated children outside their country of origin, 1 September 2005, CRC/GC/2005/6, para. 12. 11 un Committee on the Rights of the Child, General Comment No. 6 on treatment of unaccompanied and separated children outside their country of origin, 1 September 2005, CRC/GC/2005/6, para. 79. 12 S. 32 Refugees Act 1998. 13 See unicef uk The un Convention on the Rights of the Child: A Study of Legal Implementation in 12 Countries (2012) 88; Tobin J ‘Increasingly seen and heard: The constitutional recognition of children’s rights’ (2005) 21 South African Journal on Human Rights 99. 14 S. 32 Refugees Act 1998; s. 150 Children’s Act 2005. 15 S. 150 Children’s Act 2005.

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‘been abandoned or orphaned or without any visible means of support’ or lives ‘in or is exposed to circumstances which may seriously harm that child’s physical, mental or social well-being’.16 The Act provides that such children must be brought before a children’s court at the earliest opportunity for their welfare needs to be assessed (based on a social worker’s report) and must be placed in temporary state care for the purposes of their safety and wellbeing.17 Within 90 days a designated social worker must submit a report identifying the extent of the child’s needs and the measures to be taken to meet them.18 The court will then determine a care order which is in the child’s best interests.19 South Africa’s Department for Social Development, which implements the child welfare system, has produced guidance20 for staff that sets out their obligations in identifying and meeting the needs of unaccompanied migrant children, including options for providing a durable solution, in accordance with international and domestic legal frameworks. The Guidelines state that unaccompanied migrant children should be assumed to be ‘children in need of care and protection’ under the Children’s Act 2005.21 While the law and accompanying guidance provide a comprehensive system of protection and care for children, a system highly compliant with international standards, there remains a profound gap in the ability of social services to meet their statutory duties to vulnerable children under the Children’s Act 2005.22 This is particularly the case for unaccompanied migrant children, as demonstrated in the analysis below. Regulation of Entry and Stay: South African Immigration and Asylum Systems The legality of children’s entry, exit and stay in South Africa, including their ability to claim legal status, is regulated by two distinct legal systems. The

2.3

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S. 150 Children’s Act 2005. S. 151 Children’s Act 2005. S. 155 Children’s Act 2005. Ss. 6 and 7 (best interests principle) and 155 and 156 Children’s Act 2005. Government of the Republic of South Africa, Department of Social Development, Guidelines on Separated and Unaccompanied Children Outside their Country of Origin in South Africa. Government of the Republic of South Africa, Department of Social Development, Guidelines on Separated and Unaccompanied Children Outside their Country of Origin in South Africa, para. 6.1. unicef Government-Funded Programmes and Services for Vulnerable Children in South Africa (2010).

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I­ mmigration Act 2002 tightly restricts and controls the ‘type’ of persons who are permitted to enter and stay,23 making visas virtually inaccessible for anyone who is not independently wealthy and/or highly educated within a narrow ‘critical skill’ set;24 there is a marked lack of options for entry and regularisation of lower-skilled migrants.25 In addition, the Immigration Act 2002 provides for the detention and deportation of persons illegally present in South Africa (that is, those without a valid visa or permit).26 A separate refugee system affords significant protections and entitlements, but only for persons who are able to apply for asylum27 and for the small proportion of persons who are granted refugee status.28 The definition of ‘refugee’ in South Africa is expansive29 and is drawn largely from the Convention relating to the Status of Refugees30 and the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa.31 The Refugees Act 1998 confers considerable rights and entitlements to both asylum seekers and refugees, including ‘remarkable freedoms to live and work’32 and access to free health care and education. In practice, however, the broad protections set out in the Act are often meaningless, as decision-making on asylum claims in South Africa has been

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Ss. 10–24, Immigration Act 2002. See Apland K, Yarrow Y & Anderson K An Unenforceable Law: Policy, Practice and ­Political Narratives Shaping the Detention and Protection of Migrant Women in South Africa (2015) 14. Landau LB & Amit R ‘Wither policy? Southern African perspectives on understanding law, “refugee” policy and protection’ (2014) Journal of Refugee Studies 1 at 8. S. 34 Immigration Act 2002. Under s. 22 Refugees Act 1998. unhcr, Table 1: Refugees, Asylum Seekers, Internally Displaced Persons (idps), Stateless Persons and Others of Concern to unhcr by Country/Territory of Asylum, mid-2014 (or latest available estimates) (2014). See sections 3(a) and (b), Refugees Act 1998 – a person will be considered a ‘refugee’ if: they are outside their country of nationality or habitual residence and unable to return owing to ‘a well founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group’; or o­ wing to ‘external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order’. The latter category goes beyond the provisions of the un Convention. United Nations Convention Relating to the Status of Refugees, 1969, 189 u.n.t.s 137. Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa 1969, 1001 u.n.t.s 45. Landau LB & Amit R ‘Wither policy? Southern African perspectives on understanding law, “refugee” policy and protection’ (2014) Journal of Refugee Studies 1 at 6.

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shown to be both overly restrictive and arbitrary.33 In fact, failings in the practical implementation of the asylum system have placed many migrants seeking asylum at risk of deportation as ‘illegal foreigners’ under the Immigration Act. For instance, many asylum seekers will remain on temporary (s. 22) permits for months or even years whilst awaiting an asylum decision. If any of these permits expire without being renewed in time, the permit holder will be liable to detention and possible deportation as an ‘illegal foreigner’ under the Immigration Act 2002.34 3

The Journey to South Africa: Migration Patterns and Experiences of Unaccompanied Migrant Children

3.1 Reasons for Entering South Africa The qualitative data demonstrate that it is very rare for a child migrant to come to South Africa for a single reason, and illustrate the often complex interplay of factors that propel child migrants to enter the country. These factors often include experiences of abuse and neglect: I came to South Africa because I was not going to school in Zimbabwe. I was living in the streets. I was taken in by a lady who was abusing me. She forced me to beg in Harare and bring her money at the end of the day. I went to hospital because she was cutting me with cans. She is mentally ill and causing problems. We reported it to social services a long time ago, but no one was taking responsibility.35 I came by myself, alone. My parents passed away in a car accident. I was no longer going to school. I was staying with my grandmother, and I came after my grandmother passed away. There was poverty, so there were no organisations to help children (in Zimbabwe).36 My mother is in Zimbabwe and my father has passed away. I came here for a better life. I didn’t even tell my mom. I wasn’t going to school and we 33 34

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Interview (2), Academic, African Centre for Migration and Society, 27 July 2014; Interview (3), lawyers for Human Rights, Johannesburg, 16 May 2014. Amit R & Monson T Lost in the Vortex: Irregularities in the Detention and Deportation of Non-Nationals in South Africa (2010) Forced Migration Studies Programme, University of Witswatersrand. Interview, two girls (12 and 17), mgm Women and Girls’ Shelter, Musina, 9 May 2014. Interview, boy (16), Boys’ Shelter CWM, Musina, 12 May 2014.

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60 50 40 30 20 10 0

Work

Asylum

Education Men

Figure 19.1

Join relatives Women

Medical reasons

Ran away Unspecified

Children

Reported reasons for entering South Africa for men, women and children

didn’t have any money and … the situation at home … wasn’t good. I don’t want to say any more about that.37 As these interview excerpts suggest, when children explained their reasons for entering the country to researchers, they tended to focus on the immediate needs they were pursuing in South Africa (education, money, food, and so on). Their decisions to leave their countries of origin were often due to experiences of abuse and neglect, or to institutional failings that caused them to be placed in situations of danger or harm. The Pilot Project Data also provides an illustration of some of the reasons migrants reported for entering South Africa, as set out in Figure 19.1 above. As demonstrated by the figure above, children reported a diverse range of  reasons for migration, particularly in comparison to adult men, who ­overwhelmingly reported migrating for the purpose of ‘work’ or ‘claiming asylum’. ‘Work’ was the most common reason for which children reported to be migrating. Women and children were more likely than adult men to say that they had entered South Africa in order to ‘join relatives’, and (unsurprisingly) children were considerably more likely than men or women to say that they had entered South Africa for educational purposes. It is noteworthy that no children reported having entered South Africa in order to claim asylum. This may be due to a lack of knowledge among children of the asylum system, given their inexperience with official or formal systems, and/or a perception (­explored below) that children cannot claim asylum in South Africa. 37

Interview, two girls (15 and 16), mgm Women and Girls’ Shelter, 9 May 2014.

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Finally, it is highly significant that proportionally more children than women and men did not specify any particular reason or purpose for their passage into South Africa. This finding is further reinforced by evidence gathered from the qualitative research, which found that children tend to travel to South Africa without a clear purpose or destination in mind; most are lacking documents, money or contacts, rendering them highly vulnerable to different forms of exploitation. 3.2 Crossing the Border According to the Pilot Project Data, the majority of children who enter South Africa unaccompanied appear to lack the documentation necessary to enter the country lawfully. Due to the restrictive border entry requirements in South Africa, along with the lack of travel documents and information or understanding of how to cross the border, large numbers of child migrants cross the border to South Africa informally. The majority of these crossings are arranged in advance; many research participants reported having paid malayshas – corrupt border guides who facilitate people’s passage across the border in exchange for money – to arrange their crossing. They often experienced abuse by magumagumas – armed bandits who prey on people crossing the border irregularly, committing theft, assault, rape and other acts of violence, often in collusion with malayshas. Dangerous animals are also a threat. The data from the qualitative research provided numerous disturbing accounts of the lawlessness and violence that characterises the bush area of the South AfricaZimbabwe ­border, as illustrated by the following interview excerpt: I crossed by the Limpopo river. I didn’t have money to get a ride to Musina. They left me in the forest. I didn’t know anyone. There were just magumagumas and soldiers in the trees.38 4

Child Migrants and Detention: A Shifting Practice

Immigration detention is a primary mechanism for border control in South Africa, and is used to facilitate the deportation of ‘unlawful’ migrants. The Immigration Act 2002 provides legal grounds for the detention and deportation of persons who are in South Africa without a valid visa or permit,39 but places

38 39

Interview, two girls (12 and 17), mgm Girls’ Shelter, 10 May 2014. S. 34 Immigration Act 2002.

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restrictions, in accordance with international law,40 on the detention of migrant children: children may be detained only as a last resort and only for the shortest appropriate period of time.41 While the Department of Home Affairs does not publish statistics on the numbers of migrants arrested, detained and deported, research findings demonstrate that persons who are unable to prove their legal status are frequently arrested by police officers or border guards and detained in police stations, before being released, deported or transferred to Lindela Repatriation Centre (the country’s only dedicated immigration detention facility). The data indicate that most of the undocumented migrant adults placed in immigration detention are men.42 As a key advocate responsible for monitoring (unlawful) detention in Musina noted, ‘We try to focus [our services] on the most ­vulnerable groups, but the majority of the people who get detained are men – 90% of our referrals are men [although] we do look in particular for women and children.’43 Respondents reported that incidents of (unlawful) detention and deportation of undocumented migrant children used to be commonplace, despite the legal restrictions on the detention of migrant children, including a case which held that placing children in immigration detention (in Lindela) is unlawful on the grounds that children have a right to have their interests considered by a children’s court, entailing an assessment of their welfare needs following their placement in temporary care.44 Due to a recent normative shift, however, the (formal) detention and deportation of undocumented migrant children appear to have reduced. This was identified in the qualitative research; for ­example, according to a child protection specialist in Musina: In 2009 [children] were being arrested by sandf [South African National Defence Force] and held [in detention]. Now the police and soldiers pick them up and bring them to the reception office here, run by dsd [Department for Social Development]. dsd will place them in a shelter.45 40 41 42

43 44 45

See art. 37(b) crc. Ss. 29 (1) and (2) Refugees Act 1998. See Apland K, Yarrow Y & Anderson K An Unenforceable Law: Policy, Practice and ­Political Narratives Shaping the Detention and Protection of Migrant Women in South Africa (2015) 33. Interview, Lawyers for Human Rights, Johannesburg, May 2014. Centre for Child Law and Another v Minister of Home Affairs and Others, 2005 (6), case no. 22866/04. Interview, Save the Children, Musina, May 2014.

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Similarly, another interviewee described ‘a change in policy in child detention’ in 2011: ‘In late 2012, 2013 we saw few minors in detention in Lindela or in police stations. In 2011 we saw quite a few.’46 The change in detention practices was also recognised by migrant children themselves: At that time [deportation] was happening to everyone who did not have  documents – these days if you are under 19 they take you to the shelter. [Back then] they held me at the police station for one or two days. I was deported three times. They did not separate minors from adults.47 These reports are supported by the limited statistical data available on the numbers of children in detention, and have been confirmed by government statements and monitoring visits, which demonstrated a decline over time in the numbers of children held in migration detention.48 The change is probably due largely to the concerted efforts of ngos and human rights advocates. The emergence of the norm discouraging detention of migrant women and children constitutes the protected ‘space’ carved out of the system, a concession to calls for government to strengthen adherence to the principles of children’s rights in its treatment of children. Nevertheless, (unlawful) detention of child migrants remains an issue of concern. Research interviews with key stakeholders consistently revealed allegations of continued detention of children in more clandestine, remote and hard-to-access detention points. Interviewees often attributed this to insufficient knowledge of the law prohibiting detention of children or to complacency on the part of authorities, in circumstances where there is a limited civil society presence monitoring the activities of law enforcement and state actors and holding them to account. Lack of knowledge, however, may not be the only issue: ongoing detention of children may result from a perceived need to ‘manage’ the presence of unaccompanied migrant children in South Africa in contexts where social protection services are unavailable or overwhelmed. As one participant explained:

46 47 48

Interview, Lawyers for Human Rights, Johannesburg, May 2014. Interview, boy from Zimbabwe (20), Boys’ Shelter, Musina, 12 May 2014. Elphick R & Amit R Border Justice: Migration, Access to Justice and the Experiences of ­Unaccompanied Minors and Survivors of Sexual and Gender-based Violence in Musina (2012).

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Last year, all the cases involving minors all came from outside of the province … They bring them to Lindela [Repatriation Centre]. They have to take the minors because otherwise they will be destitute.49 5

Protection Failures: Remaining Vulnerable to Detention and other Abuses

As is discussed below, while the normative shift away from detention is, of course, a positive development, it has not been accompanied by the development of effective protective frameworks. Instead, the vulnerability of child migrants to detention and to exploitation and abuse persists, owing to systemic failings in the child protection and asylum systems and the inability of children and young people to access the asylum system or other ways to regularise their stay. Child Protection System: Providing Protection but Enforcing Vulnerability Irrespective of their immigration status, children are explicitly protected by child welfare legislation and procedures under the Children’s Act 200550 and protections are set out in Departmental Guidance that applies specifically to unaccompanied migrant children.51 While these legal protections and procedures are poorly implemented, recognition of the specific vulnerability of many migrant children, and their experiences of sexual violence and trauma, has inspired the development of specific structures and services to cater for their needs. In particular, a number of shelters have opened in communities with large migrant populations to accommodate unaccompanied children; three shelters in Musina house migrant children (two accommodate women and girls52 and one is for boys), and several exist in Johannesburg. These shelters are run by voluntary sector organisations53 and are not registered as child and youth care 5.1

49 50 51 52 53

Interview, Lawyers for Human Rights, Johannesburg, May 2014. S. 32 Refugees Act 1998. Government of the Republic of South Africa, Guidelines on Separated and Unaccompanied Children Outside their Country of Origin. Women are able to stay with their children, although boys are separated from their mothers once they are older than seven years of age and taken to the boys’ shelter. The shelters have reportedly received a relatively high degree of attention and funding  support from international human rights and development actors, such that some

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centres under the Children’s Act 2005. Nevertheless, in Musina, limited support and cooperation has been provided by the Department of Social Development, which, along with the police and the children’s court, have a general practice of referring unaccompanied migrant children to the shelters and issuing temporary care orders (although other care procedures under the Children’s Act are not completed). The conditions at the children’s shelters have been subject to a fair degree of scrutiny and criticism both by government and civil society actors.54 It should be acknowledged, however, that many of the shelters (particularly in Musina) compare favourably to other forms of institutional accommodation for vulnerable children in South Africa.55 Shelters provide access (albeit limited) to a range of welfare services, including a place to stay, regular meals, sanitary facilities, and educational and social support. Many children interviewed during the research reported feeling ‘safe’ and ‘happy’ in the shelters, for example, ‘I am happy here at the shelter, they look after me well and I am going to school’.56 Site visits have indicated that, whilst the general conditions and facilities at shelters are rudimentary, they are nonetheless adequate and the staff clearly supportive. 5.1.1

Failure to Address Children’s Needs: Disappearance of Children from the Shelters Despite these positive aspects, the shelters have significant shortcomings. The majority of them relate to a lack of reliable funding and support, which, as noted above, is characteristic of the child protection system more generally. The shelters are expensive to run, and there are serious doubts about their sustainability, especially as international donors withdraw funding support.57 An additional hurdle is presented by new legislation which requires that the shelters make substantial changes to staffing, infrastructure and facilities in order to be registered as official child and youth care centres under the Children’s Act, or face closure by July 2015.58

respondents felt that the financing of these institutions was ‘disproportionate’ compared to other institutions housing vulnerable children in South Africa. 54 Interview, academic expert in migration, Johannesburg, July 2014. 55 Interview, unicef representative, Johannesburg, July 2014. 56 Interview, girl (16), mgm Women and Girls’ Shelter, Musina, December 2014. 57 Interview, matron, mgm Women and Girls’ Shelter, Musina, December 2012. 58 Elphick R & Amit R Border Justice: Migration, Access to Justice and the Experiences of ­Unaccompanied Minors and Survivors of Sexual and Gender-based Violence in Musina (2012).

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Insufficient funding has resulted in serious inadequacies in staffing and facilities. One caregiver at a shelter reported working for more than 15 months without pay.59 According to another, ‘We are looking after children who have undergone trauma, babies and mothers, but the agencies are not paying us – this is a serious challenge.’60 Security is a further challenge. Shelters are easily accessible from the street and clearly advertised with signs indicating that they house ‘unaccompanied’ and ‘vulnerable’ women and children. During interviews at one shelter, caregivers reported being fearful of a group of ‘gunmen’ who had recently raided the shelter and taken a number of residents.61 According to another caregiver: Our security is no longer coming because we haven’t given the payment [to the security staff]. We cannot lock the gate and so magumagumas come. They come to steal and rape.62 Concerns were also raised about safety at the boys’ shelter, which at times has been a target for xenophobic attacks. One child staying at the shelter explained: There was a time when …we didn’t have a wall … [people] could run in or out at night … [people] broke in. They were beating people for no reason. They were accusing us of stealing.63 There have been disturbing reports of night raids, where groups of men have managed to overpower unarmed security staff and enter the shelter, allegedly to ‘recruit’ children to work on farms.64 Furthermore, although children at the shelters are encouraged and supported to go to school, lack of money presents a persistent difficulty, and many children reported missing classes and trips, failing exams and facing stigma as a result of being unable to afford equipment and pay fees: ‘We are failing subjects because we cannot bring the materials. We do not attend and so we do not get marks.’65 In addition to challenges at school, a number of children 59 60 61 62 63 64

65

Interview, matron, mgm Girls’ Shelter, 10 May 2014. Interview, matron, mgm Girls’ Shelter, 10 May 2014. Interview, matron, mgm Women and Girls’ Shelter, Musina, December 2012. Interview, girl from Zimbabwe (15), mgm Women and Girls’ Shelter, Musina, 9 May 2014. Interview, boy from Zimbabwe (18), cwm Boys’ Shelter, 12 May 2014. Elphick R & Amit R Border Justice: Migration, Access to Justice and the Experiences of ­Unaccompanied Minors and Survivors of Sexual and Gender-based Violence in Musina (2012). Interview, girl from Zimbabwe (15) mgm Women and Girls’ Shelter, Musina, 9 May 2014.

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residing at the shelters complained of a lack of food, clothing and access to health care. One boy explained: There was a time when they said there are no donors – there was no ­ oney for food and uniforms. dsd [The Department of Social Developm ment] stopped delivering money here. So when they stopped, obviously many things stopped.66 Another told researchers, ‘We don’t have any clothes.’67 The boys’ shelter, in particular, is characterised by significant overcrowding. A report published in 2012 noted that of the 97 boys staying in the shelter in September of that year, only 18 had beds.68 Poor facilities at the shelters drive many children to leave. The research revealed consistent accounts of children disappearing from the shelters ­ ­because available services were not suitable for meeting their needs; as one respondent observed: ‘They are throwing [children] in the shelters and then they run away. Mostly it is a capacity issue.’69 A caregiver at the boys’ shelter ­explained: ‘Quite often we lose children from the system. No one can feed them, so they go looking for food’.70 Tellingly, some migrant children and women r­ eportedly feel safer living on the streets than they do staying at the shelters.71 An additional and more fundamental issue also causes migrant children to leave the shelters: the structured lifestyle and care offered at the shelters is often incompatible with migrants’ own priorities, which typically involve the need and desire to work, travel and be mobile. For many children the shelters are simply a drop-in centre from which they come and go as they please whilst they spend their days looking for ‘piece jobs’ and hawking or begging on the streets.72 A caregiver at the boys’ shelter explained: ‘Most are not going to 66 67 68

69 70 71 72

Interview, boy from Zimbabwe (18) cwm Boys’ shelter, 12 May 2014. Interview, girl from Zimbabwe (13) mgm Women and Girls’ Shelter, Musina, 9 May 2014. Elphick R & Amit R Border Justice: Migration, Access to Justice and the Experiences of ­Unaccompanied Minors and Survivors of Sexual and Gender-based Violence in Musina (2012). Interview, leading academic expert in migration, Johannesburg, July, 2014. Interview, Matron, mgm Girls’ Shelter, 10 May 2014. Elphick R & Amit R Border Justice: Migration, Access to Justice and the Experiences of Unaccompanied Minors and Survivors of Sexual and Gender-based Violence in Musina (2012). Elphick R & Amit R Border Justice: Migration, Access to Justice and the Experiences of ­Unaccompanied Minors and Survivors of Sexual and Gender-based Violence in Musina (2012).

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school – they are opting to look for piece jobs.’ She went on to note that, in fact, ‘most [children] opt to live on the street because it is not restricted – they can beg for money’.73 A migrant boy told researchers: ‘Some [children] only stay one or two nights. They go to work. They do not [want] to go to school’; another explained: ‘They stay for a week, then leave to find work to help their family.’74 Migrants’ need to work is at least partly linked to the poor standard of care provided at the shelters. When asked about the challenges associated with providing care to migrant children, one respondent replied: ‘We advise them [about services] but it’s a challenge because they do not go. Normally they have their destitution in mind – they do not have time to get services.’75 The paradox within this statement is, of course, that whilst protection services are intended to address migrants’ destitution, it is destitution itself that prevents access to services, leading to the unavoidable conclusion that these services are not fit for purpose. Previous research carried out with child and women migrants in Musina found that ‘the fact that many children either avoid the shelters entirely or treat them as drop-in centres suggests a need to redesign social services to better meet the needs of uams [unaccompanied minors]’.76 The issue of whether children should work is particularly illustrative of the mismatch between the needs of migrant children and the protection services that are available to them. Interviews with shelter staff indicated a general ­normative conviction that (child) migrants staying at the shelters should not be working, that they ought to be attending school, and that the social welfare services available at the shelters come as a ‘package deal’ along with the structured care and supervision this supposedly entails. Furthermore, children ­typically do not possess asylum permits and therefore even those who are above the legal minimum age for employment lack the legal right to work: There is [no legal status] that applies to the majority of migrant children, who are on the move … most children are here to get work. There is no legal framework for the children that work.77 However, perhaps the most telling consideration of all is the fact that the shelters are not always conveniently located to support migrants’ access to work: 73 74 75 76 77

Interview, Save the Children, Musina, 15 May 2014. Interview, Boy from Zimbabwe (17), cwm Boys’ shelter, December 2012. Interview, Lawyers for Human Rights, Musina, 13 May 2014. Elphick R & Amit R Border Justice: Migration, Access to Justice and the Experiences of Unaccompanied Minors and Survivors of Sexual and Gender-based Violence in Musina (2012). Interview, leading academic expert in migration, Johannesburg, 27 July 2014.

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according to the qualitative data, many children and women prefer to sleep at markets and truck shops, as these are located closer to where they look for informal jobs during the day. Finally, it is significant that many of the unaccompanied children travelling into South Africa have been living and working on the streets for some time and often find it difficult to adjust to the more structured, supervised and restricted lifestyle at the shelters. One of the caregivers at a shelter in ­Johannesburg observed: Some children tell you [that] in the shelter they are always locked up – so it’s like they are in prison again. So the moment they just get a chance, they sneak out.78 Another stakeholder pointed out: Children are supposed to go into the care system – the children’s shelters. However, many children do not want to go into the care system. Children of high school age want to be fluid.79 5.1.2 Exclusion from Protective Frameworks: Missing Children The large numbers of children who leave the shelters are extremely vulnerable, because once they depart, they tend to disappear altogether from the reach of formal (legal) systems. Caregivers do not appear to reach out to children who leave the shelters, nor do they usually make an attempt to contact the Department of Social Development. In practice, no procedures appear to be in place for attempting to trace and identify missing children. Migrant children living on the streets are generally ignored, save for the fact that they are highly prone to arrest for (alleged) criminal activity.80 Furthermore, many unaccompanied migrant children fail to access protective services in the first place. There is particular concern about the number of migrant girls who are ‘missing’ from the system. Fewer unaccompanied girls than boys are thought to migrate to South Africa, although this may be explained by the fact that girls’ migration is more hidden. According to organisations in Musina, the ratio of unaccompanied boys to girls who cross the border

78 79 80

Principal of a school for migrant children, Johannesburg, May 2014. Interview, Human Rights Commission, Johannesburg, December 2012. Evidence from a series of interviews with migrant women and children at the Central Methodist Church, Johannesburg, December 2012 – July 2014.

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is roughly 3:1, and yet the ratio of girls in social care is much smaller.81 At the end of July 2012, for example, 97 boys were staying in shelters in Musina, compared to only 19 girls.82 Little is known of what happens to girls who go missing after crossing the border, but, according to the qualitative research, it is likely that they end up working as household help, in prostitution or in other exploitative arrangements. Some may end up begging on the streets; indeed, ngo outreach workers have reported that there are a number of pregnant girls, and girls with small babies, amongst the population of migrant street children sleeping in the truck shops in Musina.83 One child protection specialist told researchers: Statistically, if you are to preview numbers of migrants from 2008 you realise that there are more boys than girls – it could be that fewer girls take the risk of coming without documents, but the other issue is that they just disappear because they are more vulnerable. They are taken out of the system. They get married early. They are trafficked. They end up in prostitution. Their invisibility is not a result of them not existing.84 Several accounts of girls going missing over the period of the research offer revealing explanations as to why this happens and what the surrounding contexts are.

Case Study: Interview, Girls’ Shelter, December 2012 Kayla,85 15 years old, decided to travel from Zimbabwe to South Africa for a better future. Things were ‘not good’ at home, and she was not attending school. She travelled with her friend, Faith, also 15 years old. They crossed the border ‘illegally’ through the bush. On the way they encountered a man. He said he could help them cross the border, and offered them a place to stay as well as food and money. Kayla and Faith went with the man to his home. When they arrived, Kayla asked for some soap so that she could wash her clothes. The man gave her soap and a bucket, and she went into the garden, leaving Faith inside the house together with the man. After she finished washing her clothes, Kayla returned to the house.

81 82

Interview, International Organisation for Migration, Musina, December 2012. Elphick R & Amit R Border Justice: Migration, Access to Justice and the Experiences of Unaccompanied Minors and Survivors of Sexual and Gender-based Violence in Musina (2012) 36. Interviews with civil society partners, Musina, December 2013 & May 2014. Interview, Save the Children, Musina, 15 May 2014. Names have been changed to protect the anonymity of the research participants.

83 84 85

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She found her friend ‘lying on the floor, naked and screaming’. The man ‘chased’ them both out of the house. He told them that if they ever told anyone what he had done, he would find them and kill them. Kayla and Faith never directly spoke about what had happened. In fact, Kayla said Faith had never told anyone what happened to her. When Kayla and Faith arrived in Musina they were taken to a children’s shelter and interviewed by a social worker. Kayla told the social worker what had happened to Faith, but Kayla explained that Faith had not wanted to talk about it; she refused to speak to the social worker about the event and no further action was taken. After some weeks passed, Faith became aware she was pregnant. She told Kayla she had to leave the shelter to find the man and ask him what he intended to do for her and the baby. Kayla begged Faith not to leave, but could not persuade her to stay. Faith has been missing ever since. When Kayla related this story to researchers, she intimated that had Faith been willing to speak of her experiences, and had the social worker taken action, the outcome of Faith’s situation could have been different. In previous research with migrant children and women in Musina, Roni Amit and Rosaline Elphick also conclude that inaction by social workers and caregivers at the shelter, along with a lack of adequate counselling, is a direct causal factor in the disappearance of children from the accommodation.86 5.2 Exclusion from the Asylum System and Lack of Durable Solutions Children migrants in South Africa have few options available to them. On the one hand, services at the shelters are inadequate or incompatible with their need to work, travel and be mobile. On the other hand, once children leave the shelters they experience little or no protection from social welfare services, and may be exposed to harassment, arrest and detention at the hands of state actors. These difficulties are exacerbated by the significant barriers children face in accessing the immigration and asylum systems in order to legalise their status and obtain admission to the full range of rights and protections which that legal identity entails. 5.2.1 Difficulties in Accessing the Asylum System The un Committee on the Rights of the Child has recognised the importance of ensuring that all unaccompanied migrant children should enjoy access to 86

Elphick R & Amit R Border Justice: Migration, Access to Justice and the Experiences of Unaccompanied Minors and Survivors of Sexual and Gender-based Violence in Musina (2012) 58.

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asylum systems, ‘irrespective of their age’.87 Unfortunately, research findings demonstrate that children in South Africa are systematically excluded from claiming asylum owing to a widespread perception amongst law enforcement actors, service providers and migrants that a person is unable to claim asylum until he or she is 18 years old. This perception is (somewhat) misplaced; as with adults, children fleeing persecution or ‘external aggression, occupation, foreign domination or events seriously disturbing the public order’88 qualify for refugee status. Problematically, however, the law fails to positively set out or establish any provisions for unaccompanied children to claim asylum ­independent of external assistance. The confusion about children’s access to the asylum system appears to come from a provision in the Refugees Act 1998, which provides that unaccompanied migrant children who appear to qualify for refugee status must be brought before the children’s court, which should then assist the child, through a guardian or social worker, in applying for asylum.89 This is reproduced in Departmental Guidance, which states that ‘[i]f a child appears to qualify for refugee status, a social worker must assist the child in applying for asylum’.90 This provision has been widely interpreted by law enforcement, advocates, civil society actors and others as implying that children must have assistance from the children’s court in order to exercise their right to claim asylum: Children should first go through the child protection system. The children’s court will appoint a “legal guardian” to deal with the child’s asylum case. Without this guardian in place, a child does not have access to the system.91 In practice, it appears that, in order even to access a section  22 temporary ­asylum permit, an unaccompanied child must possess both a children’s court order and be accompanied by a social worker. The research revealed consistent accounts of children being turned away from refugee reception offices for being ‘under-age’. ‘They told me I was a minor, and they told me to go away’;92 87

88 89 90 91 92

un Committee on the Rights of the Child, General Comment No. 6 on the treatment of unaccompanied and separated children outside their country of origin, 1 September 2005, CRC/GC/2005/6, para. 66. S. 3 Refugees Act 1998. S. 289(2) Children’s Act 2005. Government of the Republic of South Africa, Guidelines on Separated and Unaccompanied Children Outside their Country of Origin, para. 6.3. Interview, Refugees Appeal Board, Pretoria, December 2012. Interview, boy from Zimbabwe (17), Central Methodist Church, December 2012.

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‘I  tried to get asylum at Home Affairs – they said I was young and sent me away.’93 These are typical of the ways in which children described their experiences. An expert attorney reported that ‘children who try to apply for asylum are told by the court to come back with a guardian/social worker before they may apply’.94 In offering an explanation of this, one legal advocate observed that ‘they say you can’t make a statement and sign a statement until you are 18 years’.95 The difficulty with this is that in practice few children have access to the children’s court or receive services from social workers; as one participant commented, ‘They’re not supposed to let under 18s apply [without a social worker], but the next step never happens the way it should.’96 Furthermore, social workers and those caring for children appear to have very limited k­ nowledge or understanding of refugee law and how it applies to children in their care; it might not occur to them to help children access a refugee reception office. This confusion is demonstrated by the following passage: Children have to be accompanied by an adult [to get asylum status]. The social worker has to determine whether they need asylum … I haven’t heard of a case for the past five years. I’ve never seen a child actually ­recognised as an asylum seeker. There is a clause that says children cannot be asylum seekers – unless they are accompanied [in which case] they will fall under their parents’ status.97 In practice, only a tiny minority of children are likely to be able to navigate the system as unaccompanied minors.98 Respondents in the research consistently acknowledged that they had never personally seen or experienced the law functioning as it should: Interviewee: When an unaccompanied minor comes to the attention of authorities they should be taken to a children’s court. There should be a court order to take them to a place of safety. After that the social workers should support them through the refugee determination process.

93 Interview, boy from Zimbabwe (17), Central Methodist Church, December 2012. 94 Interview, attorney and Director, Centre for Child Law, University of Pretoria, 9 May 2014. 95 Interview, legal advisor, Musina Legal Advice Office, Musina, December 2012. 96 Interview, leading academic expert in migration, Johannesburg, 27 July 2014. 97 Interview, matron, mgm Girls’ Shelter, 10 May 2014. 98 Interview, unhcr representative, Pretoria, December 2012.

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Researcher: How often does this happen in practice? Interviewee: I have never personally come across this.99 A Refugee Appeals Board interviewee claimed never to have received any ­appeals pertaining to cases of unaccompanied children. When pressed on why this might be, he made the extraordinary claim that ‘there are no unaccompanied children seeking asylum in South Africa’.100 There are, of course, ­numerous unaccompanied children in South Africa who do attempt to claim asylum, a number of whom were interviewed as part of the Pilot Project, but they are simply not able to make their way through the system as minors. Perplexingly, even in the case that a child does have the assistance of the children’s court and a social worker, the Department of Home Affairs reportedly will not conduct refugee-status determination interviews with that person but instead extend the child’s temporary asylum-seeking permit until he or she is 18.101 Delaying status determination for children is hugely problematic, both in the short term, because children are left in a state of limbo with precarious legal status and limited access to rights associated with legal status, and in the long term, because waiting may compromise children’s ability to prove their claim at a later stage. The situation in their country of origin may have changed substantially, and children are likely to struggle to remember the details of why they left. One stakeholder explained: Status determination officers are not trained to interview children a­ nymore. Where children do get placed in the system they hang out until they are over 18. But by that time they can’t remember the details of their claim.102 This is a violation of international legal standards, which provides that the claims of unaccompanied children should be prioritised within the system.103 The difficulties children have in accessing the asylum system, and their inability to make independent claims, have reinforced the general belief amongst migrants themselves that children are not permitted to claim asylum at all. 99 100 101 102 103

Interview, attorney, Lawyers for Human Rights, Musina, December 2012. Interview, Refugees Appeal Board officer, Pretoria, December 2012. Interview, academic expert in migration, Johannesburg, 27 July 2014. Interview, academic expert in migration, Johannesburg, 27 July 2014. un High Commissioner for Refugees (unhcr), Conclusions Adopted by the Executive Committee on the International Protection of Refugees, December 2009, 1975–2009 (­Conclusion No. 1–109).

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Over the course of the Pilot Project, workers and researchers were consistently told that ‘asylum is for people over 18 years old’.104 Children appear to have very little understanding of their right to claim asylum in South Africa: as one of them remarked, ‘Asylum is not supposed to be done by people under 18 – I just have a court order done by social workers.’105 The emergence of these barriers is darkly ironic, given that the purpose of the law appears to be to ensure that vulnerable migrant children have access to social care and legal assistance to support them to navigate the system more effectively. It seems doubtful that the law is intended to preclude or prohibit children who lack access to the children’s court or the assistance of a social worker from claiming asylum, or that this would be upheld if a case testing it were taken to the courts. 5.2.2 No Durable Solutions It is important to note that not all children will qualify for refugee status and that, as previously mentioned, the asylum system is already overwhelmed and characterised by gross inefficiency and dysfunction. As such, it is highly unlikely that improving children’s access to the asylum system will result in reaching a sustainable outcome for more than a very few migrant children. According to international standards, unaccompanied migrant children should not ‘automatically’ be referred to asylum procedures, where an assessment demonstrates that there is no indication of them being in need of ‘international protection.’106 Such children should be protected pursuant to child protection mechanisms and enjoy access to the full range of rights contained in the crc while a ‘durable solution’ is sought for the child that addresses ‘all of their protection needs, takes into account the child’s view, and where possible, leads to overcoming the situation of a child being unaccompanied’.107 Tracing family members and facilitating family reunification in the child’s country of origin, where possible and in accordance with the child’s best ­interests, should be the first step in searching for a durable solution, according

104 Interview, boy from Zimbabwe (16), cwm Boys’ shelter, December 2012. 105 Interview, boy from Zimbabwe (18), cwm Boys’ shelter, 12 May 2014. 106 un Committee on the Rights of the Child, General Comment No. 6 on the treatment of unaccompanied and separated children outside their country of origin, 1 September 2005, CRC/GC/2005/6, para. 67. 107 un Committee on the Rights of the Child, General Comment No. 6 on the treatment of unaccompanied and separated children outside their country of origin, 1 September 2005, CRC/GC/2005/6, para. 79.

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to international standards108 and Departmental Guidance.109 Placement into formal care in the child’s country of origin should also be investigated, though this should not be pursued without secure and concrete care arrangements that consider the ‘safety, security and socio-economic conditions in the country of origin’.110 Pursuing either of these options requires a careful determination of whether they are in the best interests of the child.111 Unfortunately, it appears that, while required ‘on paper’ to do so, the Department of Social Development does not routinely carry out individualised best-interest determinations or tracing for unaccompanied migrant children.112 Durable solutions are not pursued in practice. For children who cannot be returned to their country of origin, options for a durable solution are also extremely limited in practice. Currently, the law provides only extremely limited options for securing legal status where children do not qualify for refugee status (after they turn 18).113 Unfortunately, none of these options appears to be exercised in practice. This greatly reduces the ability of children to be integrated into the local community in a long-term and secure way. Local integration based on secure legal status is the ‘primary option’ if return to a child’s country of origin is not possible, according to the un Committee on the Rights of the Child.114 The lack of pursuit of durable solutions leaves unaccompanied migrant children in a highly precarious position regarding their future status. Children only qualify for social assistance and remain exempt from deportation as unaccompanied minors until the age of 18 years, at which point their order from the children’s court (if they possess one) will expire. At this stage they are left 108 un Committee on the Rights of the Child, General Comment No. 6 on the treatment of unaccompanied and separated children outside their country of origin, 1 September 2005, CRC/GC/2005/6, paras 81–3. 109 Government of the Republic of South Africa, Guidelines on Separated and Unaccompanied Children Outside their Country of Origin, para. 6.4.1. 110 Government of the Republic of South Africa, Guidelines on Separated and Unaccompanied Children Outside their Country of Origin, para. 6.4.2. 111 un Committee on the Rights of the Child, General Comment No. 6 on the treatment of unaccompanied and separated children outside their country of origin, 1 September 2005, CRC/GC/2005/6, para. 86. 112 Interview, Attorney and Director, Centre for Child Law, University of Pretoria, 9 May 2014. 113 See Apland K, Yarrow Y & Anderson K An Unenforceable Law: Policy, Practice and Political Narratives Shaping the Detention and Protection of Migrant Women in South Africa (2015) 14–15. 114 un Committee on the Rights of the Child, General Comment No. 6 on the treatment of unaccompanied and separated children outside their country of origin, 1 September 2005, CRC/GC/2005/6, para. 89.

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without any legal basis to remain in South Africa and are at risk of detention and deportation, often to a country where they may no longer have any meaningful ties, as illustrated by a research participant: There is no systematic method for addressing what happens to children after they turn 18 years. It is likely that they will just be deported. The approach is piecemeal and disjointed. There are unaccompanied minors who have a genuine refugee case, but because of the flaws in the system, their claim does not get properly considered.115 6

‘Double exclusion’: The Impact of Protection Failures

Migrant children in South Africa often find themselves in a double bind: on the one hand they are excluded from the immigration system because they are children; on the other, they may be excluded from social protection services because they have no legal status. The research revealed many accounts of services turning children away because they lacked identity documents, and service providers interviewed during the research sometimes expressed a lack of knowledge of how to deal with cases of undocumented migrant children: ‘Unaccompanied migrant children without documents are a major headache for us. These children come into the system and we don’t know what to do with them’.116 Rights advocates and civil society representatives consistently pointed to a general lack of knowledge about legal provisions that allow migrants access to services like health care and education. Even in cases where documentation is not an issue, the protection system is failing migrant children due to poor infrastructure and resources and a failure of services to respond to the realities and needs of migrant children. Thus, in practice, children are claiming to be adults in order to access the immigration system or to find work. This double exclusion creates a number of pathways to detention for migrant children. Those who leave the shelters are at risk not only of immigration detention, pending deportation as illegal foreigners, but to detention within the criminal justice system. This seems to be due in part, first, to an increasing trend of ‘criminalisation’ of migrants in South Africa, which is both a consequence and cause of widespread xenophobic attitudes and the increased securitisation of South Africa’s border; and, secondly, to the fact that the vast 115 Interview, International Organisation for Migration representative, Musina, December 2012. 116 Interview, social worker, Child Welfare South Africa, Johannesburg, December 2012.

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majority of unaccompanied child migrants in South Africa end up living and working on the streets in highly vulnerable and precarious situations. The qualitative research found numerous accounts of child migrants being subject to harassment and arbitrary arrest on the basis of their vulnerability. An interviewee at a shelter in Johannesburg explained the bind that many migrant children living on the streets find themselves in: ‘Children were just loitering – since [they] were unaccompanied, they didn’t have anywhere to go – so [­police] have to take them to the court.’117 In fact, key stakeholders provided anecdotal evidence that migrant children are arrested and placed in a juvenile detention facility next to Lindela as an alternative to incarceration in the official migrant detention estate. As previously noted, children who remain within the shelters face detention and deportation as illegal foreigners after they turn 18 because they typically remain undocumented and are excluded from any immigration-status determination. And finally, children who claim to be adults in order to access the asylum system, work, and so on, are liable to detention as age-disputed minors. Significantly, interviewees often identified a direct causal link between children’s exclusion from the asylum system and their vulnerability to arrest and detention. As one key stakeholder noted: The problem is, because children can’t access the asylum system until they’re 18 years old, they say that they are 18 in order to do so. This then removes certain rights and protections and exposes them to … detention at a later stage.118 Similarly, an immigration lawyer explained: The police do know to refer a child [to the Department of Social Development]. The only challenge is when a person claimed to be 20 – [then] in the cells starts to say ‘I’m 16.’ We’ve heard of those kinds of cases because according to regulations a minor cannot apply [for asylum] without a guardian. It comes back to us to say he lied. We have to convince that the person is a minor.119 The challenge is exacerbated by the fact while that most migrants, especially children, who enter South Africa informally, lack documents to prove their 117 Interview, man from Zimbabwe (21), Central Methodist Church, Johannesburg, June 2014. 118 Interview, commissioner, Human Rights Commission, Johannesburg, December 2012. 119 Interview, attorney, Lawyers for Human Rights, Musina, 13 May 2014.

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identity and age, the Department of Home Affairs lacks a robust, accurate age-assessment process.120 Indeed, many migrant children interviewed in the research, especially boys and those encountered in Johannesburg, had faced periods in detention as age-disputed minors. 7 Conclusion This chapter has demonstrated how the extensive social and legal protections to which unaccompanied migrant children are entitled under the law are failing in practice to provide them with meaningful protection. While these failures are explicable in part as problems of resources, particularly within the Department of Social Development, they may also be understood as a function of the government’s approach to migration policy, which is characterised by restrictive practices and lack of accountability. Given the limited political will within the Department of Home Affairs to realise the protective frameworks written into the Refugees Act 1998, efforts to promote the rights of unaccompanied migrant children have focused on the provision of social assistance. Yet such assistance has proven to be of limited value when it is neither accompanied by legal status nor designed to fit the realities of migrant children’s lives. The analysis presented here points to the need for a shift in approach whereby protection is provided to migrant children on the basis of the reality of their situation rather than through a focus on implementing legal provisions that have antithetical impacts within a broken system. Doing so may include: clarifying children’s rights to claim asylum; establishing care arrangements that accommodate children’s lived experiences (for example, which provide part-time work opportunities for older children); strengthening services and access to justice for children who are victims of sexual and gender-based violence; and implementing mechanisms for identifying and pursuing durable solutions, including establishing additional pathways for securing legal status. Bibliography Chapters in Books

Segatti A ‘Migration to South Africa: Regional challenges versus national instruments and interests’ in Segatti A & Landau L (eds) Contemporary Migration to South Africa: A Regional Development Issue (2011) Washington: The International Bank for Reconstruction and Development / The World Bank. 120 Interview, commissioner, Human Rights Commission, Johannesburg, December 2012.

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Journal Articles

Landau LB & Amit R ‘Wither policy? Southern African perspectives on understanding law, “refugee” policy and protection’ (2014) Journal of Refugee Studies 1 at 8. Tobin J ‘Increasingly seen and heard: The constitutional recognition of children’s rights’ (2005) 21 South African Journal on Human Rights 99.

Reports

Amit R & Monson T Lost in the Vortex: Irregularities in the Detention and Deportation of Non-Nationals in South Africa (2010) Forced Migration Studies Programme, University of Witswatersrand Apland K, Yarrow Y & Anderson K An Unenforceable Law: Policy, Practice and Political Narratives Shaping the Detention and Protection of Migrant Women in South Africa (2015) Coram Children’s Legal Centre. Elphick R & Amit R Border Justice: Migration, Access to Justice and the Experiences of Unaccompanied Minors and Survivors of Sexual and Gender-based Violence in M ­ usina (2012) African Centre for Migration and Society. UNHCR, Table 1: Refugees, Asylum Seekers, Internally Displaced Persons (IDPs), Stateless Persons and Others of Concern to UNHCR by Country / Territory of Asylum, mid-2014 (or latest available estimates) (2014). UNICEF Government-Funded Programmes and Services for Vulnerable Children in South Africa (2010), available at http://www.unicef.org/southafrica/resources_8143.html (accessed 13 October 2015). UNICEF UK The UN Convention on the Rights of the Child: A Study of Legal Implementation in 12 Countries (2012), available at http://www.unicef.org.uk/Documents/ Publications/UNICEFUK_2012CRCimplentationreport.pdf (accessed 13 October 2015).

International and Regional Instruments and Documents

Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa 1969, 1001 U.N.T.S 45. UN High Commissioner for Refugees (UNHCR), Conclusions Adopted by the Executive Committee on the International Protection of Refugees, December 2009, 1975–2009 (Conclusion No. 1–109), available at http://www.refworld.org/docid/4b28bf1f2.html (accessed 1 July 2015). United Nations Committee on the Rights of the Child, General Comment No. 6: Treatment of Unaccompanied and Separated Children Outside their Country of Origin, 1 September 2005, CRC/GC/2005/6. United Nations Convention on the Rights of the Child 1989, 1577, U.N.T.S 3, 44. United Nations Convention Relating to the Status of Refugees, 1969, 189 U.N.T.S 137.

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Legislation and Guidance

Children’s Act 2005. Government of the Republic of South Africa, Department of Social Development, Guidelines on Separated and Unaccompanied Children Outside their Country of Origin in South Africa. Immigration Act 2002. Refugees Act 1998.

Cases

Centre for Child Law and Another v Minister of Home Affairs and Others, 2005 (6), case no. 22866/04.

chapter 20

The Prevention of Child Statelessness at Birth: A Multilevel Perspective Peter Rodrigues and Jill Stein Abstract This chapter explores the prevention of child statelessness at birth by looking at three levels: the international, regional and national legal framework. First, the international level is assessed with a specific focus on the crc. The current legal norms are discussed as well as the crc Committee’s role in the prevention of statelessness at birth, inter alia by looking at the 419 Concluding Observations it has produced. Secondly, with reference to the regional level, relevant European treaties are discussed, including the European Convention on Nationality and the European Convention on Human Rights. Thirdly, as an example of the national level, the Netherlands is used to demonstrate which issues can arise when it comes to acquiring a nationality at birth. Finally, several recommendations are made for all three levels on how the prevention of statelessness at birth can be more effective. The interplay between the different levels is crucial in this regard.

1 Introduction Statelessness is a serious problem that affects an estimated 10 million people throughout the world.1 A substantial part of this stateless population is made up of minors, with the United Nations High Commissioner for Refugees (­unhcr) estimating that worldwide every ten minutes a stateless child is born.2 These children have no state to protect them, no homeland to return to and, if without residence rights, no civil rights such as social protection rights to enjoy. This increases their risk of being subjected to poverty, exploitation and detention. Many of these children are stateless from the moment they are born, for example due to discriminatory laws. Recent initiatives, such as the #ibelong campaign to eliminate statelessness by 20243 and the development of 1 See http://www.unhcr.org/pages/49c3646c155.html (accessed 14 January 2015). 2 See http://www.unhcr.org/563762946.html (accessed 15 November 2015). 3 See http://www.unhcr.org/ibelong/ (accessed 10 November 2015).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_021

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a ­nationality law database,4 show a growing realisation that statelessness must be eradicated. But who is going to take responsibility for this group? The most obvious point to start eradicating statelessness is at the beginning, that is at birth. Factors causing statelessness at birth include poor birth registration and gaps in nationality laws and frameworks. Since in principle it is up to states themselves to determine their nationality systems, it is obvious that states need to be involved in tackling this problem. Furthermore, given that friction exists between nationality systems, leaving certain people stateless, it is important to include the regional and international level when dealing with the issue. This chapter therefore focuses on the prevention of child statelessness at birth from a multilevel perspective, one in which solutions are developed through an assessment of the current legal frameworks at the national, regional and international level. To this end, Section 2 identifies the causes of statelessness, and Section 3 outlines a framework of human rights treaties that can offer protection in the case of (imminent) statelessness. Thereafter, the chapter examines the potential protection against statelessness at birth afforded by the un Convention on the Rights of the Child (crc) and the Committee that monitors it; the examination includes an analysis of 419 Concluding Observations of the crc Committee. After having looked at international law, the chapter sets out a similar inventory of regional human rights treaties, such as the European Convention of Human Rights (echr). The next section, using the Dutch situation as an example, considers the difficulties stateless children face under national law. Then, on the basis of the problems that arise from birth registration and ius sanguinis systems, problems which lead to statelessness at birth, the chapter outlines a number of solutions that international, regional and national frameworks could offer. For practical reasons, this is not a global framework with country-specific information. It is the intention, however, that the framework will offer an initial solution for countries which have ratified the human rights treaties in question. The final section provides conclusions and recommendations. 2

Causes of Statelessness

Before discussing the prevention of child statelessness at birth, it is important to understand its causes. Statelessness can arise from many factors, ranging from denationalisation to state succession or dissolution. However, three such 4 See http://eudo-citizenship.eu/databases (accessed 11 November 2015).

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factors are particularly relevant: incongruent nationality systems; discriminatory laws; and administrative practices. 2.1 Incongruent Nationality Systems A first problem causing statelessness is the fact that, in principle, it is up to each state to determine its own nationality system. Broadly speaking, there are two such systems: the ius sanguinis and the ius soli systems. The former, literally meaning ‘the law of blood’, makes the acquisition of nationality dependent on descent.5 The ius soli system, on the other hand, links nationality to territory, with the place of birth often being the decisive criterion for obtaining the nationality of that country.6 States commonly use a mixed form of these two systems. In theory, the use of these different systems is not necessarily problematic. However, it is possible that problems of statelessness arise when people start crossing borders. For example, if a pregnant woman coming from a ‘ius soli country’ moves to a ‘ius sanguinis country’ where she delivers her baby, this child might become stateless if no other provisions regulate the acquisition of a nationality. Another issue concerns the ius sanguinis system, in that stateless parents are likely to pass on this status to their children, thereby compounding or even perpetuating the problem of statelessness. 2.2 Discriminatory Laws Statelessness can be caused not only by friction between incongruent nationality systems but by factors within those systems, namely discriminatory laws. In several countries, particular people or groups of people can be excluded from acquiring a nationality due to certain clauses or because it has been made virtually impossible for those people to access their right to a nationality.7 One form of this is gender-based discrimination. For example, in some states children can inherit only the nationality of their father, potentially leaving stateless those children who have a stateless or non-national father. Another form of discrimination can be found in laws relating to marriage. In some countries, for example, women automatically obtain the nationality of their husband once they get married. This might be problematic if the husband is stateless or a non-national. Also, some nationality laws permit only children who are born in wedlock to obtain their parents’ nationality.8 5 For example, Finland, Italy and Turkey. 6 For example, the United States, Canada and Mexico. 7 Blitz BK & Lynch M Statelessness and Citizenship: A Comparative Study on the Benefits of N ­ ationality (2011) 6–8. 8 See, for example, Austria and Denmark, where children with an Austrian or Danish father obtain these respective nationalities only if their father marries the mother during their

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2.3 Administrative Practices Factors related to administrative practices, such as a lack of identity documentation, excessive fees and the failure to register due to factors like distance or insufficient knowledge, can (but do not necessarily) lead to a failure to prove one’s connection to a state and thus possibly result in a refusal to grant a nationality. According to a study by unicef in 2013, 35 per cent of all births are unregistered, leaving 230 million children under the age of five unregistered today.9 This is mainly the result of practical deficiencies rather than problems relating to nationality laws. 3

International Human Rights Law

Although provisions concerning statelessness are contained in various human rights treaties, the number of provisions relevant to the prevention of child statelessness at birth is limited. Nevertheless, the crc contains several provisions that are crucial when it comes to the prevention of statelessness. Considering how major its reach is, namely 196 States Parties, the crc could certainly make a difference.10 Its core provision is article 7, which contains, inter alia, the right to birth registration and the right to acquire a nationality. This article will therefore be examined in more detail; however, four other human rights treaties are worth exploring beforehand. 3.1 International Human Rights Treaties Crucial to the prevention of statelessness is the acquisition of a nationality. Therefore, an important landmark was the adoption in 1948 of the Universal Declaration on Human Rights (udhr), in which the right to a nationality (art. 15) was acknowledged for the first time. Despite its importance, however, the udhr remains a non-binding declaration. As such, the adoption of two conventions specifically dealing with statelessness was plausible. The 1954 Convention relating to the Status of Stateless Persons aims to regulate the protection of stateless persons. Furthermore, it defines a stateless person as ‘a person who is not considered as a national by any State under the operation of its law’, with ‘any State’ referring to states to which a person has a certain link, 9 10

childhood (European Network on Statelessness (ens) Childhood Statelessness in Europe: Issues, Gaps and Good Practices (2014) 16). See also Section 5.3. unicef Every Child’s Birth Right: Inequities and Trends in Birth Registration (2013) 14. All states except the United States have ratified the crc; see https://treaties.un.org/pages/ viewdetails.aspx?src=treaty&mtdsg_no=iv-11&chapter=4&lang=en (accessed 25 November 2015).

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such as by birth or habitual residence. This definition refers to ‘de jure statelessness’ (statelessness according to the law). Although the definition is a part of customary law, it has been recommended that, as far as possible, states treat ‘de facto stateless persons’ (persons with no effective nationality) in the same way as de jure stateless persons.11 The second treaty, the 1961 Convention on the Reduction of Statelessness, devotes its articles 1–4 to the prevention of statelessness in particular, providing for a system for states to grant a nationality. The first article provides for a system for persons born in a state’s territory who would otherwise be stateless; the nationality of this state must be granted at birth or upon application. States, however, are allowed to make this application subject to the conditions set forth under article 1(2) of the 1961 Convention. Examples are habitual residence for a maximum of five years and the requirement that the person has never been convicted for an offence against national security. Article 4 provides a safety net for those who were not born in a state’s territory and who would otherwise be stateless: if the nationality of one of their parents belongs to that state, that same nationality must be granted. Again, this can be granted at birth or upon application, under the conditions contained in article 4(2) of the 1961 Convention (the latter is discussed further in Section 6.1 of this chapter.) Furthermore, the International Covenant on Civil and Political Rights (­i ccpr) provides for the right to acquire a nationality in its article 24. As is described in the next section, this right should be clearly distinguished from the right to a nationality. When looking at the Travaux Préparatoires of the iccpr, it becomes clear that states were reluctant to commit to ensuring the right of everyone to a nationality. Hence, a more careful approach was chosen and the current, weaker, form was agreed upon. According to the iccpr’s monitoring body, the Human Rights Committee, this right means that no unconditional obligation rests on states to grant nationality but they are nevertheless required to adopt all appropriate measures – internally and in cooperation with other states – to ensure that no child is left stateless at birth.12 Finally, there is the crc, which, because of its significance, is discussed separately in the next section. 11

12

See also 1961 Convention, Resolution i. During a unhcr expert meeting the following definition was formulated: ‘[D]e facto stateless persons are persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country’ (unhcr Expert Meeting: The Concept of Stateless Persons under International Law (Prato Conclusions) (2010) 6). un Human Rights Committee (hrc), General Comment No. 17: Article 24 (Rights of the Child), 7 April 1989 para. 8 (hereinafter: hrc General Comment No. 17).

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3.2 Convention on the Rights of the Child 13 Article 7 is the crc’s core provision when it comes to the prevention of child statelessness, and can be divided into three elements: the right to be registered immediately after birth; the right to acquire a nationality; and the implementation of these rights in accordance with national laws and obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. In most countries a birth registration certificate is a requirement to be able to acquire nationality, and as such the right to be registered could be qualified as a conditional right to the right to acquire a nationality. 3.2.1 The Right to be Registered Immediately after Birth Although it does not ensure the acquisition of a nationality and thus does not prevent statelessness, the importance of the right to be registered at birth should not be underestimated. It is the first establishment of a child’s link to a country and of his or her existence. Furthermore, a birth certificate is often a prerequisite for obtaining a nationality. Registration establishes a child’s official identity and opens doors to health care, education and later on to finding employment. Therefore, the inclusion of the right to birth registration, which was added only at the end of the crc’s drafting process, is plausible.14 In its formulation article 7 is based on article 24(2) of the iccpr, which uses exactly the same phrasing.15 Mere registration is not enough; States Parties need to ensure this right ‘immediately’ after birth. Further guidance on how to interpret and implement article 7 can be found in the Committee’s General Comments, according to which the right requires States Parties to ensure an effective registration system that is free of service and universally accessible.16 This system should be flexible and responsive to the circumstances of families. States Parties are encouraged to set up mobile registration offices and provide registration units in schools for children who are not yet registered.17 13

14 15 16 17

This section is based largely on Stein J The Prevention of Child Statelessness at Birth under the Convention on the Rights of the Child: the Committee’s Role and Potential (llm thesis, Leiden University, 2014). Detrick S (ed) The United Nations Convention on the Rights of the Child: A Guide to the ‘Travaux Préparatoires’ (1992) 123. United Nations Treaty Series (unts) Vol. 999, 17. For more on the interpretation of art. 24 iccpr, see hrc General Comment No. 17, para. 7. crc General Comment No. 7, para. 25; crc General Comment No. 11, para. 41. crc General Comment No. 9, para. 36.

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Furthermore, this right should be realised for all children, without excluding certain groups or individuals (art. 2 crc).18 Vulnerable groups such as children with disabilities and children affected by hiv/aids thus may not be treated unfavourably.19 In order to ensure that indigenous children are also registered and that their parents understand the importance of this, the Committee further recommends that, after consulting with the communities concerned, States Parties adopt measures such as periodic birth registration campaigns. In any event, it is preferable that children are registered late rather than not at all. According to the Committee, failure to do so may even constitute neglect if those responsible for the care of children had the knowledge, means and access to services to do so.20 It is fair to say the Committee succeeded in recognising the vulnerable position of unrecorded children and addressed it adequately by providing States Parties with concrete guidance on what can be derived from the right to be registered immediately after birth.21 3.2.2 The Right to Acquire a Nationality It follows from the Travaux Préparatoires of the crc that the current formulation stems from the initial proposal to include the right to a nationality.22 However, since nationality was seen as primarily a matter of domestic law, some representatives feared that the formulation would impinge on a state’s sovereignty inasmuch as the formulation could be understood to entitle every stateless child entering the territory of a state to the nationality of that particular country. The current formulation was eventually agreed upon, in accordance with article 24(3) of the iccpr.23 Consequently, a clear distinction should be made between the right to a nationality and the right to acquire a nationality.24 The latter is a weaker right than the former, and does not entail a right to a certain nationality or prescribe which nationality is to be acquired. However, it is unclear what the right does require from States Parties and who is responsible for  it. 18 19 20 21 22 23 24

crc General Comment No. 6, para. 12; crc General Comment No. 7, para. 25. crc General Comment No. 3, para. 32; crc General Comment No. 9, para. 35. crc General Comment No. 13, para. 20, 72. crc General Comment No. 11, paras. 41–3. Detrick S (ed) The United Nations Convention on the Rights of the Child: A Guide to the ‘Travaux Préparatoires’ (1992) 123. Compare Bossuyt M Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (1987) 466–7. See Adjami M & Harrington J ‘The scope and content of article 15 of the Universal Declaration of Human Rights’ (2008) 27(3) Refugee Survey Quarterly.

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­ ccording to De Groot, it should be interpreted as meaning that a child A needs to acquire a nationality after birth as soon as possible; responsibility should be borne by the state of birth as well as by the state whose nationality is held by the child’s parents.25 Nevertheless, it is hard to discern from the crc framework what it entails: only limited guidance can be found in applying the general principles.26 In this regard, Ziemele recommends deriving the interpretation from other frameworks, such as that of the iccpr; as mentioned in Section 3.1, the latter explains that while the right to acquire a nationality does not impose an unconditional obligation on states to grant their nationality, they are required to adopt all appropriate measures – internally and in co­operation with other states – to ensure that no child is left stateless at birth.27 3.2.3 The Implementation of these Rights The second paragraph of article 7 is unique in the sense that it cannot be found in any other human rights treaty and refers specifically to statelessness. It functions as an extension to the first paragraph and emphasises, inter alia, that States Parties should ensure the implementation of the right to birth registration and the right to acquire a nationality ‘in accordance with national law and obligations under the relevant international instruments in this field’. This is particularly important where the child would otherwise be stateless. Although the emphasis on the prevention of statelessness seems praiseworthy, the formulation is rather odd: one might think that national law and other obligations play a guiding role here. In that sense it seems to weaken the first paragraph of article 7. Nevertheless, this formulation appears to be the outcome of compromises and a lack of time, rather than a well-considered decision, and its main purpose is most likely to emphasise the importance of these rights and to prevent statelessness.28

25

26 27

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De Groot G ‘Staatloze kinderen: internationale standaards over hun recht op een nationaliteit’ in Lodder GG & Rodrigues PR (eds) Het kind in het immigratierecht (2012) 119. See also Doek JE ‘The crc and the right to acquire and to preserve a nationality’ (2006) 25(3) Refugee Survey Quarterly 26–7. See further crc General Comment No. 9, para. 34; crc General Comment No. 11, para. 41. Art. 31(3) vclt; Ziemele I ‘Article 7: The right to birth registration, name and nationality, and the right to know and be cared for by parents’ in Alen A (ed) A Commentary on the United Nations Convention on the Rights of the Child (2007) 2; hrc General Comment No. 17, para. 8. Detrick S (ed) The United Nations Convention on the Rights of the Child: A Guide to the ‘Travaux Préparatoires’ (1992) 123–31.

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4 The un Committee’s Role As the monitoring body of the crc, the un Committee on the Rights of the Child (the Committee) plays an important role in realising and monitoring children’s rights. Hence, it is worth exploring the Committee’s current and potential role in preventing child statelessness at birth. This section deals with the ways in which the Committee can do so by means of the days of general discussion, the General Comments and the reporting mechanism. 4.1 Days of General Discussion Biannually, the Committee arranges a day of general discussion during which a specific children’s rights issue is discussed in order to identify current problems relating to it and to consider solutions. Various actors can participate, such as un mechanisms, bodies and specialist agencies as well as representatives of governments, non-governmental organisations (ngos), national human rights institutions, and children. However, to date no general discussion has been devoted to child statelessness. Days of general discussion often result in a General Comment. 4.2 General Comments The Committee’s non-binding General Comments are an important tool for elaborating on both the interpretation of treaty provisions and their implementation. So far, the Committee has developed 18 General Comments dealing with a variety of issues ranging from the right to play to the best interests of the child. However, no General Comment has been devoted as yet to the right to acquire a nationality or the right to birth registration. Nevertheless, as noted above, provisions regarding these topics can be found occasionally in certain General Comments. 4.3 Reporting Procedure and Concluding Observations 4.3.1 Reporting Procedure Under article 44 of the crc, States Parties are required periodically to submit a report to the Committee on the measures they have adopted in order to realise the rights as laid down in the Convention and on the progress made in the enjoyment of these rights. The procedure can be found in the rules of procedure and the reporting guidelines.29 Once the pre-sessional working-group and the plenary session have taken place, the Committee, in a closed session, 29 See http://www.ohchr.org/EN/HRBodies/CRC/Pages/CRCIndex.aspx (accessed 15 January 2015).

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formulates Concluding Observations which contain important recommendations regarding a State Party’s implementation of the crc. When submitting their reports, States Parties should provide the Committee with sufficient information to give it a comprehensive understanding of the implementation of the crc in their country.30 Among other things, they should attach a copy of their principal legislation; however, the latter does not get translated into a different language, which raises questions about the effectiveness of this requirement. With regard to article 7, States Parties are required to ‘provide relevant information, including the principal legislative, judicial, administrative or other measures in force; factors and difficulties encountered and progress achieved in implementing the relevant provision of the Convention; and implementation priorities and specific goals for the future’.31 However, further specifications (for example, regarding the data to be provided) are not given as to how States should report on the issue of statelessness. 4.3.2 Concluding Observations Although non-binding, the Committee’s Concluding Observations are an important source of interpretation and guidance for a State on how to implement the crc.32 As of January 2015 the Committee had issued more than 600 Concluding Observations (or 419 excluding those on the Optional Protocols), which clearly indicates that States Parties do not view the Convention as merely a declaration of good intentions but take it seriously. In research conducted by Stein in 2014,33 419 Concluding Observations were examined to ascertain where and how the Committee has addressed the prevention of child statelessness at birth, with the study focusing on a variety of matters including – but not limited to – birth registration, nationality, statelessness, discrimination and data collection.34 Studying these Concluding Observations affords a good overview of relevant issues relating to statelessness and of the way the Committee interprets and deals with the subsequent provisions. In this section, the right to birth registration and the right to acquire a nationality are discussed consecutively. It is important, however, to bear in mind 30 31 32 33 34

Art. 44(3) crc. crc General Guidelines 1991, para. 15; see also art. 44(2) crc. See also Scheinin M ‘International mechanisms and procedures for monitoring’ in Krause C & Scheinin M International Protection of Human Rights: A Textbook (2012) 673–4. Stein J The Prevention of Child Statelessness at Birth under the Convention on the Rights of the Child: the Committee’s Role and Potential (llm thesis, Leiden University, 2014). For the Concluding Observations see http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=5&TreatyID=10&TreatyID=11&DocTypeID=5 (accessed 11 November 2015).

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the various limitations the Committee faces when examining state reports. For example, the Committee can judge only on the basis of what is presented to them; furthermore, reports are often long and contain many different issues, whereas the Committee has limited time in which to deal with these issues.35 4.3.2.1 The Right to Birth Registration It is evident that the Committee has a strong focus on birth registration, which has been addressed in 230 (or 55 per cent) of the 419 Concluding Observations.36 As to how it addresses birth registration, the Committee generally adheres to its statements in the General Comments: the right requires an effective system that is free and accessible to all.37 States are thus often encouraged to abolish registration fees and late registration fines,38 as well as to facilitate late registration and take appropriate measures in this regard.39 In the case of rural or remote areas, they should establish mobile registration offices, inter alia, at schools or in hospitals.40 Moreover, the Committee has frequently identified problems relating to discrimination, such as discriminatory practices with regard to children of minorities, children born out of wedlock, children living in rural areas or refugee children, problems it addresses clearly and specifically. Other recommendations include raising awareness among parents, community leaders, hospital staff, the government and other actors,41 and building cooperation with un instances, such as unicef.42 That these measures are taken seriously is evident in the subsequent periodic reports, which refer to follow-up measures such as target-setting, the development of campaigns, and cooperation with unicef.43 4.3.2.2 The Right to Acquire a Nationality Although statelessness was already addressed in 1994, the Committee has engaged with the topic only in 77 out of 419 Concluding Observations.44 Not 35 36 37 38 39 40 41 42 43 44

See also Liefaard T ‘De waarde van de rapportageverplichting van Nederland aan het VNKinderrechtencomité’ (2013) 4 njcm Bulletin 477–81. Stein J The Prevention of Child Statelessness at Birth under the Convention on the Rights of the Child: the Committee’s Role and Potential (llm thesis, Leiden University, 2014) 24. For example, Paraguay 97, para. 38; Kyrgyzstan 2000, para. 30; Malawi 2002, para. 32. For example, Guinea Bissau 2002, Mozambique 2009, Ukraine 2011. For example, Mozambique 2002, para. 35; Haiti 2003, para. 33; Papua New Guinea 2004, para. 34. For example, Uganda 1997, para. 16; Yemen 1999, para. 20; India 2000, para. 37. See, for example, Fiji 1998, para. 35; Yemen 1999, para. 20; Turkey 2012, para. 37. See, for example, Bangladesh 2003, para. 38; Indonesia 2004, para. 39; Liberia 2004, para. 35. See, for example, State report Sierra Leone 2008, para. 144–50. Stein J The Prevention of Child Statelessness at Birth under the Convention on the Rights of the Child: the Committee’s Role and Potential (llm thesis, Leiden University, 2014) 26.

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much is known about the global situation of statelessness, but it is clear this is not a prominent matter on the Committee’s agenda. A glance at the State reports makes it apparent that while States do not elaborate on this topic, the Committee also omits to request more information. When they do provide such information, the Committee is easily satisfied and usually discusses it only briefly.45 What seems to capture a substantial share of attention, however, is discrimination. States are mostly – and in a general way – requested to abolish discriminatory provisions and practices. Nationality practices that negatively affect children born out of wedlock46 or children with disabilities47 are not permitted. Also, the inability of women to pass on their nationality is negatively commented on by the Committee.48 In addition, States Parties are encouraged to take all appropriate measures to protect children from being stateless, which thereby correctly reflects the obligations pursuant to article 7(2).49 However, it remains unclear how exactly States Parties are meant to implement these measures; the Committee’s phraseology is vague. Furthermore, apart from one recommendation – made to Honduras to continue its campaign on the right to a nationality – not a single reference is to be found on raising awareness in relation to nationality.50 The latter is important, since a lack of awareness by the government as well as the population is a factor that impedes the realisation of this right.51 In sum, more guidance on how to interpret the right to acquire a nationality and the second paragraph of article 7 can certainly be used. 5

Regional Human Rights Law

This section discusses the regional human rights treaties that are important in tackling statelessness at birth. For reasons of space, the discussion is limited to European treaties.

45 46 47 48 49 50 51

For example, Colombia 1994; Colombia 1995; Colombia 2000; Colombia 2006. Togo 2005, para. 34; Madagascar 2012, para. 32. Yemen 2014, para. 39. Saudi Arabia 2006, para. 38; Algeria 2012, paras. 39–40. Lithuania 2006, para. 34. Honduras 2007, para. 40. unhcr Report on Statelessness in South Eastern Europe (2011) 25; unhcr Civil Registration Protecting Refugees and idps Preventing Statelessness (presentation at 7th Annual Symposia on Statistical Development (assd)) (2012) 9.

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5.1 European Convention on Nationality The European Convention on Nationality (ecn) of 1997 specifically deals with nationality and is more explicit in its formulations than the crc. It holds that preventing statelessness is a general legal principle. Two other general principles are that states are free, within the limits of international law, to determine who their nationals are, and that regulations in relation to nationality may not be discriminatory.52 The sovereign right of states to determine who their nationals are should be in keeping with these three principles.53 The ecn distinguishes between initial statelessness (at birth) and subsequent statelessness (for example, through loss of nationality). With regard to statelessness at birth, the ecn prescribes that every state shall include in its internal law the possibility of the acquisition of its nationality for children who are born on its territory and who do not possess another nationality.54 The Convention offers two possibilities in this case: nationality can be granted automatically at birth or at the request of (or on behalf of) the stateless child. If the provision of nationality is granted upon a request, then the state can require an applicant to have been ‘lawfully and habitually resident’ for a period not exceeding five years on the territory of the state.55 (In the discussion in Section 6 of the Dutch situation, it will be seen that this requirement of ‘lawful and habitual residence’ goes further than the requirements laid down in the 1961 Convention.) In the case of subsequent statelessness, the ecn provides that a state may not include automatic loss of nationality in its internal law if the consequence of this is statelessness. There is an exception to this rule if the nationality was obtained through fraudulent conduct, false information or the withholding of relevant information.56 The ecn also applies to cases where a person is already stateless. The Convention provides that a state shall facilitate in its internal law the acquisition of nationality for stateless persons and persons acknowledged as refugees who have ‘lawful and habitual residence’ on its territory.57 Convention on the Avoidance of Statelessness in Relation to State Succession Although few states have ratified it, the Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession (cass) of 2006 is 5.2

52 53 54 55 56 57

Art. 5 ecn. Art. 3(1) ecn. Art. 6(2) ecn. Art. 6(2)b ecn. Art. 7(2)b ecn. Art. 6(4)g ecn.

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discussed here as it functions not only as a separate treaty but, in the European context, as an interpretation of the 1954 Convention and the 1961 Convention. Among other things, cass contains a provision to ease the burden of proof and defines important concepts, such as ‘habitual residence’ (referred to in the Dutch situation discussed below). cass states in article 1(d) that ‘habitual residence’ should be explained as ‘factual residence’. The origins of the 1961 Convention also explicitly state that the term ‘habitual residence’ is not legally binding.58 In the case of state succession, cass allows for the right to a nationality to be defined by making the predecessor state or the successor state responsible for granting this.59 Contrary to other treaties concerning statelessness, it contains provisions with regard to procedural guarantees for stateless persons. For example, the standard rules for granting nationality may not be applied if the person concerned cannot reasonably be expected to be able to provide the required documentation.60 cass prohibits the Catch-22 situation where stateless persons have to prove they have not acquired another nationality.61 In addition, the Convention contains provisions concerning decision periods, substantiation and fees in regard to decisions on nationality. 5.3 European Convention on Human Rights Unlike the crc, the European Convention on Human Rights (echr) of 1950 does not contain a provision on the right to a nationality. However, in the case Genovese the European Court of Human Rights (ECtHR) reiterates that the concept of ‘private life’ in article 8 of the echr is a broad term and not susceptible to exhaustive definition.62 It covers the physical and psychological integrity of a person, and can therefore also embrace multiple aspects of the person’s physical and social identity. The provisions of the article do not guarantee, however, a right to acquire a particular nationality or citizenship. Nevertheless, an arbitrary denial of citizenship might under certain circumstances raise an issue under article 8 of the echr. This was the case when a British mother applied for the Maltese nationality for her son, Ben Alexander Genovese, because his father also had the Maltese nationality. The application was denied because the son was born out of wedlock. In court the question 58 59 60 61 62

Vonk OW & Vink P Protection against Statelessness: Trends and Regulations in Europe eudo Citizenship Observatory (2013) 30. Art. 2 of cass. Other issues regarding state succession fall outside the scope of this chapter. Art. 8(1) of cass. Art. 8(2) of cass. ECtHR 11 October 2011 (Genovese), Application no. 53124/09, no. 30.

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was whether the refusal was an infringement of the provisions of article 8 of the echr (private life) in conjunction with its article 14 (non-discrimination). In the reasoning of the ECtHR, the right to citizenship is not included in the echr, but a denial of citizenship might be in breach of rights in respect of private life because of the impact the denial could have on the social identity of the person concerned. Since there was no objective justification for excluding children born out of wedlock, the denial of the request of Ben Alexander Genovese was found to be in breach of article 14 in conjunction with article 8 of the echr. As seen in Section 4.3.2 of this chapter, discriminatory rules of nationality law as a cause of statelessness by birth are also a point of attention for the crc Committee. 6

National law

The system of ius sanguinis can cause statelessness at birth. This section deals with two ius sanguinis countries which ratified the 1954 and 1961 Conventions and are still confronted with childhood statelessness. First, we examine nationality law in the Netherlands, given that legislative steps have been taken to introduce a stateless determination procedure. Secondly, we discuss the situation in Hungary, a country selected for analysis in view of the fact that it already has such a determination procedure in force. 6.1 The Dutch case 6.1.1 Data and Statistics Concerning the Netherlands Dutch nationality can be obtained if one of the child’s parents has Dutch nationality. When both parents are stateless, the child will also be stateless but can acquire the Dutch nationality if he or she is born in the Netherlands, has lawful residence and has been living in the Netherlands for three or more years. There is no statelessness determination procedure yet, but after a Council of State judgement, the Secretary of State announced on 10 September 2014 that the Netherlands will introduce such a procedure.63 Nevertheless, if a migrant is found to be stateless, the proposed procedure will not provide for a residence permit and thus for legal residence. The determination of possible statelessness and the application for a residence permit will be two separate procedures. If this status is not acknowledged, the right to residence is usually not granted. The position of this foreign national is extremely vulnerable, while 63 Kamerstukken ii (nl Parliamentary Papers) 2013/14, 19 637, no. 1889.

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expulsion is often not an option since no country acknowledges the person as a citizen. It is clear that this situation is undesirable in the case of children. To find out how many children in the Netherlands are affected by statelessness, we looked at all persons aged 0 to 18 years of age who were recorded in the Dutch municipal personal records database. Every person’s status should be registered and the municipality should assess whether this would be qualified as a specific nationality, stateless or nationality unknown. The latter qualification is very vague and is meant to be used when it is impossible to establish whether a person has a nationality or is stateless. The qualification ‘unknown citizenship’, which is also applied in other countries, has been severely criticised as an unclear concept with negative consequences for the migrant.64 On 1 January 2013 the number of minors recorded as ‘stateless’ – irrespective of whether they lived at the same address as their parents or not – was 880.65 About half of them were born in the Netherlands. We should appreciate that these statistics do not give a complete picture regarding stateless children in the Netherlands, because not all aliens are registered in the municipal database. For example, children who are living in the Netherlands but who are not lawfully resident (illegal) are not registered, nor are all asylum seekers. The Dutch Municipal Database (Personal Records) Act (Wet gba) contains procedures for registration. This Act applies to the data presented here. On 6 January 2014 the Dutch Persons Database Act (Wet brp) came into effect to replace the Wet gba. The regulations in this area have remained virtually the same in the new Wet brp. An alien is registered using documents issued by an authority with the power to do so or through application of the governing laws on nationality. Persons entitled to asylum do not usually possess documents to prove their nationality, and as a result they are often recorded as ‘nationality unknown’. On 1 January 2013 the number of minors, whether registered or not as living with their parents, with the status ‘unknown nationality’ was considerably higher than the number of children registered as ‘stateless’ and stood at 23,530 children. 6.1.2 Legislation in Breach of 1961 Convention The United Nations mandated the United Nations High Commissioner for Refugees (unhcr) to protect the rights of stateless persons and to prevent and reduce statelessness. Under this mandate, the unhcr published the report Staatloosheid in Nederland (Statelessness in the Netherlands) in November 64 65

Gyulai G Nationality Unknown? An Overview of the Safeguards and Gaps Related to the Prevention of Statelessness at Birth in Hungary (2014). Centraal Bureau voor de Statistiek 2013.

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2011.66 The most important conclusion in this report was that the procedure in the Netherlands for the identification of stateless persons does not function properly and that, as a result, the rights of stateless persons residing in the Netherlands are not guaranteed. The unhcr report led to the Advisory Committee on Migration Affairs (acvz) issuing recommendations regarding statelessness.67 The key finding was that no proper identification of stateless persons is carried out, even though this is necessary to execute several rights contained in the 1954 Convention and the 1961 Convention. Stateless persons – including children – experience problems when applying for naturalisation because it is not always possible for them to provide the required birth certificate and travel document. The 1961 Convention requires that every state will grant its nationality to those persons who are born on its territory and would otherwise acquire the status ‘stateless’. Children born to stateless parents would otherwise become stateless themselves in countries that use the ius sanguinis system. In our opinion, this should be prevented. In the Netherlands, on the grounds of article 6(1)b of the Rijkswet op het Nederlanderschap (rwn) (Dutch Nationality Act), to acquire Dutch nationality these children must have ‘lawful residence’. Although this requirement is permitted under article 6(2)b of the ecn, it is contrary to article 1(1)b of the 1961 Convention, which requires merely that there is a situation of ‘habitual residence’. We believe that the rwn should be brought into line with the 1961 Convention. The ecn does not affect this obligation. In addition, the condition of lawful residence is inconsistent with the right to nationality as contained in article 7 of the crc.68 In its judgment of 21 May 2014, the highest Dutch Aliens Court, the Council of State Court, indicated that the Dutch authorities are indeed obligated to establish a procedure to determine status.69 The case at issue concerned a ­minor alien who was registered with ‘unknown nationality’ and whose Chinese mother had applied to have the registration changed to ‘stateless’. The request was denied because the statutory regime did not allow for such an amendment. The Council of State provided an obiter dictum, stating that the 1954 and 1961 Conventions demand a stateless determination procedure and that if the Dutch government would not take action as a legislature, the ­Council of State 66 67 68 69

unhcr Staatloosheid in Nederland (2011). acvz Geen land te bekennen: Een Advies over de Verdragsrechtelijke Bescherming van ­Staatlozen in Nederland (2013). Busser A & Rodrigues P ‘Staatloze Roma in Nederland’ (2010) a&mr 384–91. ABRvS 21 May 2014, ab 2014/288 note by Rodrigues.

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would do so as a Court. This judgement was a turning-point, and on 20 September 2014 the State Secretary acknowledged the importance of a procedure to establish status in the case of stateless persons.70 Aliens who do not possess documents with which they could establish statelessness would benefit from the status of stateless in order to obtain a travel document and to be considered for accelerated naturalisation as well as for more flexibility in the requirements for documents to achieve naturalisation. Children are also required to submit a birth certificate and travel document as supporting documents to establish their identity and, as a result, their nationality.71 In addition, the procedure to identify statelessness is important with regard to the issue of whether children who are born stateless can apply for Dutch citizenship through the application of the option right contained in article 6(1) (b) of the rwn. On 12 November 2014, the Secretary of State published his first views on the new determination procedure, which has particular significance for the article 6(1)(b) rwn application.72 In the case of stateless children without a residence permit, the proposed regulation requires that there has been five years’ habitual residence, that none of the parents is able to end the statelessness, and that the parents should not have frustrated their return or evaded governance surveillance. As mentioned before, the crc Committee’s Concluding Observations are an important source of interpretation and guidance for a state on how to implement the crc. In May 2015 the Committee published its Concluding Observations on the Netherlands, which include a remark on the proposed amendments.73 The Committee recommends that the latter should not differentiate between children who have legal residence and those who do not. Both categories should be able to acquire the Dutch nationality on equal terms. Similar critical remarks were made by Defence for Children and the unhcr.74 6.2 Other European Countries One of the main complications of statelessness in the European Union is that children inherit this status from their parents (discussed in the Dutch case). When both parents are stateless and give birth to a child in a country where the rule to acquire nationality is based on ius sanguinis, the newborn child will be stateless. Due to fears that migrant parents might abuse nationality law, many 70 Kamerstukken ii (nl Parliamentary Papers) 2013/14, 19 637, no. 1889. 71 ABRvS 19 February 2014, ab 2014/233 note by Rodrigues. 72 Kamerstukken ii (nl Parliamentary Papers) 2014/15, 19 637, no. 1917. 73 Concluding Observations: The Netherlands, 8 June 2015, no. 32 and 33. 74 Letter of 30 January 2015.

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eu Member States have changed their nationality law such that children no longer acquire the nationality of the country of birth. This was the case following proceedings that led to a decision of the European Court of Justice (ecj) in Chen (Ireland)75 and Ruiz Zambrano (Belgium).76 The objective of the ius sanguinis principle was to prevent children becoming stateless. The consequence of the changed policy is that the population of stateless minors is growing. Gásbor Gyulai has conducted research into the situation of statelessness at birth in Hungary, a country that has particular relevance to the Dutch case ­because it already has a statelessness determination procedure and is therefore discussed here.77 Hungary is, like the Netherlands, a State Party to all statelessness-related international conventions, and has taken significant ­ steps to improve its legal framework concerning the prevention of statelessness. One example is the statelessness determination procedure which was introduced in 2007.78 According to Gyulai’s research on statelessness at birth, there are still important shortcomings in both the legislative framework and the practice of authorities. Hungarian legislation provides for sufficient safeguards, in line with the country’s international obligations, for the prevention of statelessness in the case of foundlings. For children born in Hungary who are not foundlings, Hungarian law does not establish a general safety net against statelessness at birth. The only exception concerns children born to stateless parents with a domicile in Hungary who obtain Hungarian nationality automatically at birth. Children who do not acquire any nationality at birth can obtain Hungarian nationality by declaration. However, the rules relating to this procedure are in breach of Hungary’s international obligations, as they include conditions not permitted under the 1961 Convention, such as the requirement of domicile. Hungarian law does not allow for certain categories of foreigners to establish a domicile in the country, regardless of the fact that they reside in the country in a lawful and habitual manner. These categories include recognised stateless persons, beneficiaries of a tolerated status, as well as all third-country nationals without a permanent resident status. In this way stateless people are never able to meet the domicile requirement. 75 76 77 78

ecj 19 October 2004 (Chen), C-200/02. ecj 8 March 2011 (Ruiz Zambrano), C-34/09. Gyulai G Nationality Unknown? An Overview of the Safeguards and gaps Related to the ­Prevention of Statelessness at Birth in Hungary (2014). See European Network on Statelessness (ens) Statelessness Determination and the ­Protection Status of Stateless Persons 2013.

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So far, the situation in Hungary seems to have parallels with the Dutch case. A further similarity exists in respect of birth registration. In Hungary the civil registration authority examines a child’s nationality at birth, and if the child’s nationality or statelessness is not established, ‘unknown nationality’ will be noted in the civil registry. Gyulai reports that, as a result of these rules, children born to non-Hungarian parents are regularly registered at birth as being of unknown nationality. Despite all these deficiencies, the crc Committee has never commented on nationality matters in Hungary. To acquire Dutch citizenship in cases of statelessness by birth, the Netherlands requires legal residence, which is in breach of the 1961 Convention. This is also the case in Ukraine.79 Nevertheless, it is not possible at all to acquire nationality in Cyprus, Albania, Norway and Romania. Some European countries – namely, Croatia, Lithuania and Slovenia – require that both parents are stateless. In Hungary both parents should be stateless and registered (so-called domicile). Age limitations apply in Estonia and Latvia (15 years) as well as Sweden (20 years). Italy requires the recognised statelessness of the parent(s). Problems with birth registration also exist in various European states. The causes lie not only in the restrictive requirements for registration but also in a lack of awareness among parents, which sometimes leads to their not registering the birth of their child(ren). Most of these problems usually occur in eastern and southern European countries and among the Roma community.80 7

The Way Forward

As mentioned previously, a national approach alone is not enough to address the inter- and intra-country causes of statelessness. Ideally, there should be an international body that oversees and tackles the problems and root causes of statelessness. In this regard, the crc Committee could be of great value, given that the crc deals with statelessness and is binding upon all countries in the world but one. Although thus far it has not always had a strong focus on this topic, the Committee could make a great difference by setting minimum standards with regard to the acquisition of nationality and birth registration to prevent statelessness at birth and create more unity amongst countries’ nationality systems. This could be done in the ways described below. 79 80

For country-by-country information, see ens Preventing Childhood Statelessness in ­Europe: Issues, Gaps and Good Practices (2014) 12–15. ens Preventing Childhood Statelessness in Europe: Issues, Gaps and Good Practices (2014) 21–4.

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First, the crc Committee could devote more attention to, and provide more clarification of, statelessness-related matters in its reporting procedure and Concluding Observations. It could ask States Parties and ngos for more information in this regard, for example information on nationality laws and data on stateless people. The attention and clarification currently given to the right to birth registration in the Concluding Observations should be continued. ­Regarding the right to acquire a nationality, greater reference should be made to this right and more clarification provided. In particular, who is responsible for ensuring that a child acquires a nationality, how and which nationality? These questions could also be dealt with in a new General Comment on this topic, as the African Committee of Experts on the Rights and Welfare of the Child has done.81 Strong emphasis should be placed on the prohibition of discriminatory laws and practices and on the need for children who would otherwise be stateless to obtain a nationality; ratification of the 1954 and 1961 Conventions should be encouraged.82 Also, children should not be made dependent on their parents’ behaviour and capacities to acquire nationality; according to article 2(2) of the crc, minors should not be treated less favourably because of the behaviour of their parents. If these rights have been clarified, it becomes much more apparent to countries what is required of them and how they should organise their nationality systems in order to contribute towards a statelessness-free world. Secondly, the regional level could serve as an additional level both for using and repeating those minimum standards of the international level as well as for providing extra safeguards, such as has been done, for example, by the 1961 Convention and the ecn. Other good practices could be derived, for instance, from the ECtHR; here, although the right to a nationality or birth registration is nowhere to be found in its Convention, the ECtHR nevertheless reads these rights into other fundamental rights of the echr. Regional case law could also be used to further clarify statelessness-related rights. In this way, countries can be held accountable for violations of laws and can be given clarity. Thirdly, it is then up to the states to make their laws congruent with these international and regional standards. However, they do not have to hold back here and can always provide additional safeguards. For example, the Netherlands could require that children are not registered as ‘nationality unknown’ in the database any longer than is necessary to establish nationality. Although 81 82

ACERWC/GC/02 (2014). The 1954 Convention has 86 States Parties; the 1961 Convention, 64 States Parties. See https://www.treaties.un.org (accessed 25 November 2015).

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this is not directly required by international or regional law, long waiting periods are contrary to the principle of proportionality. Finally, the crc Committee should then monitor the steps taken, assess them in the light of the crc and call for States Parties, should they not be compliant, to make changes. As became clear as well in the Hungarian case, stateless matters are not always noticed or taken up by the crc Committee. ngos could play an important role in this regard, by placing this topic high on the agenda and by informing the crc Committee about a country’s situation in the so-called ‘shadow reports’. In this way, all levels of engagement are interconnected and able to contribute to the prevention and eradication of statelessness at birth. 8 Conclusion This chapter examined the prevention of child statelessness at birth at three different levels. Two main problems were identified: inadequate birth registration and the inheritance of statelessness. We first looked at what protection can be offered by international human rights, and then at the regional – mainly European – conventions. The third level where these issues were considered concerned national legislation. At the international level several initiatives have been taken. Many norms, however, still require clarification, in particular the right to acquire a nationality. The crc is important in this regard, with its 196 States Parties and various provisions relevant to statelessness. The study of 419 Concluding Observations of the crc Committee shows that so far the Committee has had a strong focus on birth registration; this has been addressed many times in the Concluding Observations, and clear guidance has been given as to what this right entails. As for problems relating to the right to acquire a nationality, they have not always been taken up or noticed by the Committee, which was also evident, for example, in the case of Hungary. Therefore, it is recommended that the Committee devote more attention to these rights and provide more guidance in this regard. As for the regional level, several treaties in Europe serve as examples of how one could deal with nationality rights. The cass provides a number of definitions, and functions as a further clarification of the 1961 Convention. Similarly, although the echr does not contain a provision on nationality, the ECtHR has shown nevertheless how a denial of citizenship can lead to a violation of the echr.

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The Netherlands and Hungary, serving as examples for the national level, show that much progress can still be made; international and regional standards are not necessarily enough, which is also evidenced by the many children who are registered in the Municipality Database under ‘nationality unknown’ and left in a legal limbo. Therefore, it is crucial that all three levels – international, regional and national – start to focus more attention on the prevention of statelessness at birth and clarify certain norms. It is then up to bodies like the crc Committee to oversee the national systems, clarify obligations, and to set extra norms, for example through its Concluding Observations and a new General Comment on statelessness. Bibliography Books

Blitz BK & Lynch M Statelessness and Citizenship: A Comparative Study on the Benefits of Nationality (2011) Edward Elgar. Bossuyt M Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (1987) Dordrecht: Martinus Nijhoff. Detrick S (ed) The United Nations Convention on the Rights of the Child: A Guide to the ‘Travaux Préparatoires’ (1992) Dordrecht: Martin Nijhoff. Gyulai G Nationality Unknown? An Overview of the Safeguards and Gaps Related to the Prevention of Statelessness at Birth in Hungary (2014) Hungarian Helsinki Committee.

Chapters in Books

De Groot G ‘Staatloze kinderen: Internationale standaards over hun recht op een nationaliteit’ in Lodder GG & Rodrigues PR (eds) Het kind in het immigratierecht (2012) The Hague: Sdu Publishers. Scheinin M ‘International mechanisms and procedures for monitoring’ in Krause C & Scheinin M International Protection of Human Rights: A Textbook 2 ed (2012) Âbo Akademi University, Institute for Human Rights. Ziemele I ‘Article 7: The right to birth registration, name and nationality, and the right to know and be cared for by parents’ in Alen A (ed) A Commentary on the United ­Nations Convention on the Rights of the Child (2007) Brill/Nijhoff.

Articles

Adjami M & Harrington J ‘The scope and content of article 15 of the Universal Declaration of Human Rights’ (2008) 27(3) Refugee Survey Quarterly 93–109. Busser A & Rodrigues P ‘Staatloze Roma in Nederland’ (2010) 8 A&MR, 384–91.

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Doek JE ‘The CRC and the right to acquire and to preserve a nationality’ (2006) 25(3) Refugee Survey Quarterly 26–7. Liefaard T ‘De waarde van de rapportageverplichting van Nederland aan het VNKinderrechtencomité’ (2013) 4 NJCM Bulletin 469–81.

Theses

Stein J The Prevention of Child Statelessness at Birth under the Convention on the Rights of the Child: the Committee’s Role and Potential (LLM thesis, Leiden University, 2014).

Miscellaneous

Adviescommissie voor Vreemdelingenzaken (ACVZ) Geen land te bekennen: Een Advies over de Verdragsrechtelijke Bescherming van Staatlozen in Nederland (2013) The Hague. European Network on Statelessness (ENS) Childhood Statelessness in Europe: Issues, Gaps and Good Practices (2014). European Network on Statelessness (ENS) Statelessness Determination and the Protection Status of Stateless Persons (2013). UNHCR Staatloosheid in Nederland (2011). UNHCR Report on Statelessness in South Eastern Europe (2011). UNHCR ‘Civil Registration Protecting Refugees and IDPs Preventing Statelessness’ (presentation at 7th Annual Symposia on Statistical Development (ASSD)) (2012). UNICEF Every Child’s Birth Right: Inequities and Trends in Birth Registration (2013). Vonk OW & Vink P Protection against Statelessness: Trends and Regulations in Europe (2013) EUDO Citizenship Observatory.

chapter 21

Protection of Internally Displaced Children and the Guiding Principles of Internally Displaced Persons Rita Nunes Abstract The international community has increased its awareness of the situation of internally displaced persons (idps) over the last years. Classifying and categorising idps is difficult because the main characteristics of the definition are the coercive character of the displacement and the fact that those fleeing stay within their country’s borders. Because the latest statistics confirm the increased number of internally displaced children, this chapter focuses on them. The fact that there is no explicit international norm with a binding character ensuring the protection of displaced children makes them vulnerable to rights violations. The chapter explores whether the existing international legal framework is actually helping displaced children. The crc and the nonbinding Guiding Principles on idps are analysed to contrast the indirect and direct approach of these two instruments protecting displaced children. It is shown that the Guiding Principles on idps have effectively protected children since 1998.

1 Introduction Over the past years, awareness about the situation of internally displaced persons (idp) has grown within the international community. As children are one of the groups most affected by the phenomenon of displacement, it is crucial to understand the legal framework protecting them. The present chapter sheds light on the existing international legal framework for the protection of internally displaced children. The chapter begins with an analysis of internationally applied terminology, before defining and evaluating international legislation covering the protection of internally displaced children. As the Convention on the Rights of the Child (crc) approaches this problem only tangentially, an examination of other legal instruments, such as instruments of soft law, is necessary to understand the legal protection for displaced children. This involves focusing on the Guiding Principles on Internally Displaced Persons (gpidp), particularly Principles 13, 17 and 23. Other legal instruments, including the African Union

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_022

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Convention for the Protection and Assistance of idps, also address the protection of internally displaced children, but only a brief analysis of these documents is offered here. The chapter concludes by highlighting the non-binding character of the gpidp and demonstrating the importance of this document in the actual protection of children. 2

Background to the idp

2.1 Changing Scenario After World War 1 and in response to major human rights violations, many people living in Europe and Asia fled their countries to seek asylum elsewhere, while many others changed their place of residence within their country.1 In recent decades, the nature of war has changed dramatically2 with the inter-state kind characteristic of World War 1 and 2 gradually being replaced by internal conflicts.3 The ‘full scale war between nations has given way to long-term, lowintensity conflict between enemy groups within national boundaries’, with civilians the main victims.4 To aggravate their situation, since the 1980s an increasing number of those seeking asylum in other countries have had their requests denied. Many countries close their borders when a neighbouring country is involved in a conflict, in order to avoid a massive flood of migrants. In the last three decades situations like these have become more frequent in Western countries, which has led to the imposition of sanctions and visa restrictions.5 All of these measures have led to less flexibility among states for international cooperation as well as to worsening conditions for civilians displaced by conflict.6 1 Charny J ‘Internally displaced persons’ in Forsythe D (ed) Encyclopedia of Human Rights (2009) 70. 2 Newman J ‘Protection through participation: Young people affected by forced migration and political crisis’ (2005) 4. 3 Charny J ‘Internally displaced persons’ in Forsythe D (ed) Encyclopedia of Human Rights (2009) 70; Kastberg N ‘Strengthening the response to displaced children’ (2002) 1(15) Forced Migration Review 1. 4 Newman J ‘Protection through participation: Young people affected by forced migration and political crisis’ (2005) 4. 5 Zard M ‘Towards a comprehensive approach to protecting refugees and the internally displaced’ in Bayefsky A (ed) Human Rights and Refugees, Internally Displaced Persons, and Migrant Workers: Essays in Memory of Joan Fitzpatrick and Arthur Helton (2006) 28. 6 Cohen R & Deng F ‘Exodus within borders: The uprooted who never left home’ (1998) 77(4) Foreign Affairs 14.

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On the other hand, measures for the protection of idps have not been applied at the appropriate time. In comparison to legislation protecting refugees, the legal protection of idps has only prompted a ‘little coordinated ad hoc response’.7 In other words, international action on behalf of idps is far from assured or sufficient.8 The latest statistics confirming the increased number of internally displaced children support these observations.9 2.2 Definition Categorising idps is a difficult task, and scholars have offered remarkably different definitions for this group. Mooney observes that the terminology in this topic has become a ‘term of art’ as definitions are constantly changing.10 For some authors, the terminology is applicable to those persons who are uprooted by conflict, violence and persecution.11 Others include in the category of idps those who have been uprooted by development projects and natural disasters.12 More broadly, as Charny notes, idps are individuals who have been forced to flee or move from their homes but have not yet crossed their country’s border.13 In an attempt to define idps, the un Human Rights Commission passed a resolution to study this group. In 1992, a representative on idps was appointed who worked on the gpidp14 and defined idps as

7

Geissler N ‘The international protection of internally displaced persons’ (1999) 11 International Journal of Refugee Law 452. 8 Mooney E ‘Towards a protection regime for internally displaced persons’ in Newman E & Van Selm J (eds) Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (2003) 160. 9 The Internal Displacement Monitoring Centre Displaced Global Overview 2014: People Internally Displaced by Conflict and Violence (2014). 10 Mooney E ‘The concept of internal displacement and the case for internally displaced persons as a category of concern’ (2005) 24(3) Refugee Survey Quarterly 9. 11 un Doc. E/CN.4/1993/35, 21 January 1993. 12 Phuong C ‘Internally displaced persons and refugees: Conceptual differences and similarities’ (2000) 18(2) Netherlands Quarterly of Human Rights 228. In this last definition, the forced relocation by governments usually represents an involuntary case of internal displacement during which individuals receive monetary compensation by governments to be relocated (Phuong 228), as in the case of development projects including the construction of urban transportation projects. 13 Charny J ‘Internally displaced persons’ in Forsythe D (ed) Encyclopedia of Human Rights (2009) 70. 14 E/CN.4/1992/23.

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persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or humanmade disasters, and who have not crossed an internationally recognized State border.15 The main features of this definition are the coercive character of the displacement and the fact that those fleeing stay within their country’s borders.16 ­Although the gpidp provide a ‘descriptive identification’ of idps,17 the definition includes several reasons people flee: armed conflict, human rights violations, natural disasters and violence.18 The restricting term ‘in particular’, however, does suggest that the reasons enumerated do not represent an exhaustive list. Thus, there might be other causes of flight, which means that an extensive interpretation of the law can be made using this definition of idp. Following this line of thought, the gpidp uses ‘the broadest definition [at] regional or international level’19 to avoid unequal treatment among displaced persons.20 2.3 Numbers and Figures In 1982, there were about 1.2 million people displaced in 11 countries alone,21 a figure that had increased to 14 million by 1986. With the end of the Cold War at the beginning of the 1990s the phenomenon of idps assumed a new dimension.22 At that point, the situation of idps caught the attention of the 15 E/CN.4/1998/53/Add.2. 16 Kälin W & Künzli J The Law of International Human Rights Protection (2009) 503; Koskinen P Internally Displaced Persons and the Right to Housing and Property Restitution (2005) 9. 17 Kälin W ‘Guiding Principles on Internal Displacement: The way ahead’ (2008) 102 Proceedings of the Annual Meeting (American Society of International Law) 3. 18 Koskinen P Internally Displaced Persons and the Right to Housing and Property Restitution (2005) 10. 19 Koskinen P Internally Displaced Persons and the Right to Housing and Property Restitution (2005) 9; Cohen R ‘The development of international standards to protect internally displaced persons’ in Bayefski A & Fitzpatrick J (eds) Human Rights and Forced Displacement (2000) 82. 20 Phuong C ‘Internally displaced persons and refugees: Conceptual differences and similarities’ (2000) 18(2) Netherlands Quarterly of Human Rights 225. 21 Charny J ‘Internally displaced persons’ in Forsythe D (ed) Encyclopedia of Human Rights (2009) 70. 22 Phuong C ‘Internally displaced persons and refugees: Conceptual differences and similarities’ (2000) 18(2) Netherlands Quarterly of Human Rights 217.

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international community and new efforts to protect displaced persons were conceived.23 The 1992 report of the Secretary General confirmed the existence of 24 million people displaced in their own countries, including a majority of children and women.24 Studies in 2007 estimated there were between 23 and 25 million idps,25 with one study at the end of 2010 counting 27.5 million.26 Data from January 2014 showed 33.3 million people displaced by conflict and at least 13.5 million internally displaced children in the world.27 3

Guiding Principles on idps

3.1 Development of Protection Instrument While those seeking refugee status have had their rights protected by the 1951 Refugee Convention,28 decades passed before the problems of idps gained international attention. The plight of idps was eventually recognised when the Commission on Human Rights passed a resolution (Resolution 1991/25) to study the issue.29 In 1992 this Commission reinforced its efforts and requested the appointment of a representative of idps through Resolution 1992/73.30 In 1993, this representative prepared his first study31 of international standards relevant to idps, and in 1996 presented another, more comprehensive 23 24 25 26 27 28

29 30 31

Mooney E ‘The concept of internal displacement and the case for internally displaced persons as a category of concern’ (2005) 24(3) Refugee Survey Quarterly 10. Lawson E et al. Encyclopedia of Human Rights 2 ed (1996) 801. Charny J ‘Internally displaced persons’ in Forsythe D (ed) Encyclopedia of Human Rights (2009) 70. idmc (2010). idmc Displaced Global Overview 2014: People Internally Displaced by Conflict and Violence (2014). Zard M ‘Towards a comprehensive approach to protecting refugees and the internally displaced’ in Bayefsky A (ed) Human Rights and Refugees, Internally Displaced Persons, and Migrant Workers: Essays in Memory of Joan Fitzpatrick and Arthur Helton (2006) 15; Koskinen P Internally Displaced Persons and the Right to Housing and Property Restitution (2005) 11; Charny J ‘Internally displaced persons’ in Forsythe D (ed) Encyclopedia of Human Rights (2009) 70; Kälin W & Künzli J The Law of International Human Rights Protection (2009) 502. Charny J ‘Internally displaced persons’ in Forsythe D (ed) Encyclopedia of Human Rights (2009) 70. Charny J ‘Internally displaced persons’ in Forsythe D (ed) Encyclopedia of Human Rights (2009) 70; Goodwin-Gill G & McAdam J The Refugee in International Law (2007) 483. E/CN.4/1993/35 Annex.

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study.32 In the latter study, the Commission of Human Rights and the General Assembly encouraged the representative of idps to point to relevant laws and address grey areas and gaps relating to idps. The conclusions of the 1996 study revealed that although existing laws provided broad protection for the rights of idps, there were also grey areas and gaps in coverage.33 Furthermore, along with a team of experts, the special representative of idps worked on what was to become the most relevant document protecting idps: the gpidp.34 This set of principles, which were presented to the Commission on Human Rights in 1998, elaborated on the 1996 report,35 which intended to address the legislative lacunae for idps who did not benefit from any specific legal protection.36 3.2 gpidp and Implicit Protection by Solid Legal Foundation The gpidp cover implicitly what international human rights law has already affirmed: Principles 10 and 11 of the gpidp, for instance, reaffirm the existence of non-derogable rights such as the right to life and the right to dignity and physical, mental and moral integrity.37 In other words, the provisions laid out in the gpidp explicitly demand for idps what is already covered in international human rights and humanitarian rights law treaties, which in theory applies to all human beings. The gpidp cover principles like the protection against arbitrary displacement (Principle 6), the protection of personal liberty and documentation (Principle 10 and 20), of family reunification (Principle 17), of the right to a non-forcible return (Principle 15), and the right to property (Principle 21). In spite of this, legal protection for these principles38 was 32 E/CN.4/1996/52/Add.2. 33 E/CN.4/1998/53/Add.1. 34 Charny J ‘Internally displaced persons’ in Forsythe D (ed) Encyclopedia of Human Rights (2009) 70; Goodwin-Gill G & McAdam J The Refugee in International Law (2007) 483; Zard M ‘Towards a comprehensive approach to protecting refugees and the internally displaced’ in Bayefsky A (ed) Human Rights and Refugees, Internally Displaced Persons, and Migrant Workers: Essays in Memory of Joan Fitzpatrick and Arthur Helton (2006) 17. 35 un Doc.E/CN.4/1995/50. 36 Charny J ‘Internally displaced persons’ in Forsythe D (ed) Encyclopedia of Human Rights (2009) 71; Chan pcw ‘The protection of refugees and internally displaced persons: Nonrefoulement under customary international law?’ (2006) 10(3) The International Journal of Human Rights 235. 37 These rights cannot be suspended, whatever the situation occurring in a state (armed conflict, national emergency, and so on) (Charny 2009: 72). The right to life, which applies to all human beings, is described in the preamble of the Universal Declaration of Human Rights (udhr). 38 Geissler N ‘The international protection of internally displaced persons’ (1999) 11 International Journal of Refugee Law 462.

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­inadequate and they were not entirely included in human rights or international humanitarian law.39 It is necessary to stress that the gpidp were not limited to areas of protection already implicitly covered by international treaties. Beyond this, they covered the complete framework of needs for idps and the planning, monitoring and implementation of activities of governments and non-governmental organisations working with idps.40 The special feature of the gpidp is that they incorporate elements of three branches of public international law: international humanitarian law (ihl), human rights law, and refugee law. The gpidp set forth the rights of internally displaced persons and the obligations of governments and insurgent forces in all phases of displacement: before internal displacement occurs (that is, protection against arbitrary displacement), during situations of displacement, and in the return and reintegration phase.41 Based on international human rights law and domestic law, the gpidp provide guidance on displacement-specific aspects. Hence, the 30 principles enumerated in the gpidp cover different stages of displacement.42 For example, the gpidp can be consulted in the event that humanitarian law does not make specific provisions for certain needs (such as the return of displaced persons in safe and dignified conditions). At the same time, the purpose of the gpidp is neither to modify nor replace existing law, but to complement existing legislation and effectively protect idps. As our focus here is on displaced children, it is all the more important to emphasise the gpidp’s comprehensive approach to equal rights of the child (Principle 1) and children’s special protection according to their special needs (Principle 4). We will also examine the related issue of how other existing legislative documents protect children’s rights. 39

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Charny J ‘Internally displaced persons’ in Forsythe D (ed) Encyclopedia of Human Rights (2009) 72; Goodwin-Gill G & McAdam J The Refugee in International Law (2007) 485; Zard M ‘Towards a comprehensive approach to protecting refugees and the internally displaced’ in Bayefsky A (ed) Human Rights and Refugees, Internally Displaced Persons, and Migrant Workers: Essays in Memory of Joan Fitzpatrick and Arthur Helton (2006) 17. Kalin W ‘The Guiding Principles on Internal Displacement as international minimum standard and protection tool’ (2005) 24 Refugee Survey Quarterly 31. Cohen R ‘The development of international standards to protect internally displaced persons’ in Bayefski A & Fitzpatrick J (eds) Human Rights and Forced Displacement (2000) 76. Charny J ‘Internally displaced persons’ in Forsythe D (ed) Encyclopedia of Human Rights (2009) 72.

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Protection of Internally Displaced Children

4.1 Internally Displaced Children and the crc The varying definitions of ‘internally displaced children’ that can be found in the literature reveal the difficulty of reaching a consensus when it comes to pinning down the scope of the term. Children in situation of displacement are often already extensively protected by a solid legal foundation43 in both international humanitarian law and international human rights law (for example, in situations of armed conflict internally displaced children are protected by ihl). Although the crc does not refer specifically to internally displaced children in any of its articles, the rights articulated in this treaty protect the rights of all children, including internally displaced children. As Girard and Waldman point out,44 human rights treaties such as the crc are applicable to all human beings, including idp. The main rights covered by the crc concerning children in displacement situations are the right not to be separated from the parents (art. 9); the right to protection from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment (art. 19); the right of access to health care (art. 24); the right to education (art. 28); the right to protection from the illicit use of narcotic drugs and psychotropic substances (art. 33); the right to protection from sexual exploitation and sexual abuse (art. 34); the right to protection from abduction, sale and trafficking (art. 35); and, finally, the right not to be part of hostilities in armed conflict situations (art. 38). While the crc does not mention the situation of internally displaced children at all, it does explicitly cover the protection of refugee children. This has led to several efforts of the Committee on the Rights of the Child to urge States Parties of the crc to promote and improve legislative measures protecting the rights of internally displaced children.45 In a similar fashion, the un Special Representative for Children and Armed Conflict considers internally displaced children to be covered by three principles of the crc: non-discrimination (art. 2: internally displaced children have the same rights as all other children); the best interests of the child (art. 3: all measures for the protection of children’s

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Kellenberger J ‘The icrc’s response to internal displacement: Strengths, challenges and constraints’ (2009) 91(875) International Review of the Red Cross 479. Girard G & Waldman W ‘Ensuring the reproductive rights of refugees and internally displaced persons: Legal and policy issues’ (2000) 26(4) International Family Planning Perspectives 167. Kunder J & Nylund BV Human Rights and Forced Displacement (2000) 91.

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rights must be taken as primary consideration); and participation (art. 12: children have the right to be listened to and to share their ideas and views). Given that the crc protects a vast variety of rights, special attention will be given to the three articles within the gpidp associated with and explicitly mentioning displaced children: the right to family reunification, the right to education and the right not to take part in hostilities, mentioned in Principles 13, 17 and 23. The decision to analyse these three principles is based on the fact that children form a majority among idps and have unique vulnerabilities. A connection will be drawn between the crc and the three rights mentioned above, in order to better understand how internally displaced children can realise their rights. 4.2 Internally Displaced Children and the gpidp 4.2.1 Principle 13 This principle reaffirms what is described in the 1977 Additional Protocol i and ii, the Rome Statute and the crc: children shall not take part in hostilities, whether in an active or passive role. This provision coincides with what is defined in article 38 of the crc. A key issue not mentioned by the gpidp is age. Unlike the crc, the gpidp do not mention that children who have not reached the age of 15 years shall not take part in hostilities. The omission of age in the gpidp’s definition of the child is linked to the negotiations of the Optional Protocol on the Involvement of Children in Armed Conflict (op-ac), which took place simultaneously.46 Both legal texts aimed to strengthen the standard imposed by the crc and raise the age of military conscription to 18 years. 4.2.2 Principle 17 In many cases of displacement, family structures change47 as children are separated from their family members. Principle 17 reveals a certain correlation with what the crc envisages in its articles 9(1) and 22(2), providing children and their family the right to reunification. Article 22(2) of the crc makes no explicit reference to internal displacement, focusing instead on refugee children and the reunification of children and parents who live in different countries.48 Article 9(1), like article 22(2), does not contain any explicit reference to 46 47 48

Kälin W ‘Guiding Principles on Internal Displacement: The way ahead’ (2008) 102 Proceedings of the Annual Meeting (American Society of International Law) 63. Mertus J Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (2003) 258. Kälin W ‘Guiding Principles on Internal Displacement: The way ahead’ (2008) 102 Proceedings of the Annual Meeting (American Society of International Law 79).

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displaced children. Article 9(1), which some consider innovative,49 deals with the separation of children and their parents and confirms that they shall not be separated against their will. Other legal instruments with comparable significance to the crc address the situation of internally displaced children more closely. These include humanitarian law texts such as the Geneva Convention iv (arts. 26 and 50)50 and Protocol i of the Geneva Convention (arts. 24 and 74).51 Article 26 of the Geneva Convention iv states that parties in conflict shall facilitate family reunification, while article 50 stipulates that children who are separated from their parents due to a conflict shall have maintenance and education. Article 74 of Protocol i to the Geneva Convention refers to the reunification of dispersed families, while article 24 ensures that children under 15 years who are orphaned or separated from their families as a result of war are not left without resources. In Principle 17, the gpidp mention the appropriateness of steps taken to ensure family reunification. When children are involved in the process, particular measures shall be taken. The International Committee of the Red Cross (icrc), having done much practical work in the area with its Commentary to Geneva Convention iv, suggests steps to initiate facilitating the reunification of families with their children. Principle 17(3) goes on to state that cooperation between national authorities and humanitarian organisations must be established to give a quicker response to the issue of family reunification. One example of this, suggested by the former Special Rapporteur on the Human Rights of Internally Displaced Persons, Walter Kälin, would be to set up a tracking and message service between national authorities and humanitarian organisations, and between parents and displaced children. 4.2.3 Principle 23 In Principle 23, recommendations are given to authorities to take appropriate measures for implementing education for free for displaced children. This is an ambitious principle if one considers the multiple practical factors preventing 49 50

51

Detrick S A Commentary on the United Nations Convention on the Rights of the Child (1999) 173. Article 26 of the Geneva Convention iv states that parties in conflict shall facilitate family reunification; article 50 stipulates that children who are separated from their parents due to a conflict shall have maintenance and education. Article 74 of Protocol i to the Geneva Convention refers to the reunification of dispersed families; article 24 aims to ensure that children under 15 who are orphaned or separated from their families as a result of war are not left without resources.

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children from achieving an educational goal. As further described in Principle 23(2) of the gpidp, education should respect children’s cultural identity, language and religion. However, when moving within their own country, displaced children can come into contact with other languages and dialects. Such children also sometimes encounter difficulties in accessing free and compulsory schooling due to a lack of identification documentation. This proves to be an even bigger problem if one considers that a child attending school is less likely to be recruited for armed conflict or abducted and subjected to violence.52 Education and schooling also help children in the aftermath of conflict situations to recover from trauma.53 In Principle 23, the gpidp connects articles 28 and 29 of the crc: article 28 recognises the role education plays in the development of the child, while article 29 states that education helps in the development of children’s language, values and cultural identity. Beyond the crc, the importance of education for internally displaced children as expressed in article 23 of the gpidp is also articulated in other legal texts, such as article 24(1) of the Geneva Convention iv (education shall not deviate from the child’s traditions), article 78(2) of Protocol i (education shall be provided ‘with the greatest possible continuity’) and article 4(3) of Protocol ii (a child shall receive education). 4.3 Risks Associated with idp Children Children and women typically make up the majority of idps. They represent between 75 and 80 per cent of the displaced population,54 a number which has increased with the latest internal conflicts in Syria and South Sudan, where 700,000 children have been internally displaced. Children involved in situations of displacement not only face a range of risks, such as physical abuse or abduction,55 but also have other of their rights violated, such as the right to health care and education.56 They are also at risk of sexual abuse and 52 53 54 55 56

idmc Displaced Global Overview 2014: People Internally Displaced by Conflict and Violence (2014). idmc Displaced Global Overview 2014: People Internally Displaced by Conflict and Violence (2014). Mertus J Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (2003) 257. Mooney E ‘The concept of internal displacement and the case for internally displaced persons as a category of concern’ (2005) 24(3) Refugee Survey Quarterly 17. Mahalingam S, Narayan G & Van der Velde E ‘The rights of internally displaced children: Selected field practices from unicef’s experience’ (2002) 20(2) Refuge: Canada’s Periodical on Refugees 34.

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trafficking.57 The risks children face are associated with gender differences. Displaced girls and female adolescents are more likely to fall victim to trafficking, forced labour or other types of gender violence.58 Generally, girls constitute the group with the highest exposure to the risk of sexual abuse; many unwanted pregnancies occur as a result,59 and ostracism by the community is a common occurrence.60 Girls also face more obstacles to enjoying their social and economic rights.61 As they are often the last to eat, they receive less food, which increases the risk of malnutrition and associated diseases. For displaced boys, the difficulties lie in social status and social value. These children do not have access to education, cannot work and therefore have no chance to help their families by increasing their income. Without a proper income, they also remain in a disadvantaged situation because they are not able to pay a dowry.62 However, when risk factors are discussed, the time-frame is important. Surveys show that in short-term displacement, children suffer primarily from hunger and disease. A study undertaken in Somalia reveals that approximately 75 per cent of displaced children aged five years or younger died within six months of being displaced. The same survey shows that the population under the age of five years decreased during the period of study from 18.3 to 7.8 per cent. Such children die of malnutrition and micronutrient deficiency.63 Long-term displacement, on the other hand, affects children by increasing their level of poverty and lowering their social status as well as human capital: they have to leave behind their property and goods and can no longer attend school.

57 58 59 60 61 62 63

Brookings Institution Protecting Internally Displaced Persons: A Manual for Law and Policymakers (2008) 18. idmc Displaced Global Overview 2014: People Internally Displaced by Conflict and Violence (2014). idmc Displaced Global Overview 2014: People Internally Displaced by Conflict and Violence (2014). Mertus J Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (2003) 258. Mertus J Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (2003) 261. Newman J ‘Protection through participation: Young people affected by forced migration and political crisis’ (2005) 15. Toole M & Waldman R ‘The public health aspects of complex emergencies and refugee situations’ (1997) 18(1) Annual Review of Public Health 289.

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idp Child Protection Mentioned in Other International and Regional Documents The gpidp have influenced other legal documents and prompted regional bodies to apply its rules. One example is the Inter-American Commission on Human Rights of the Organisation of America, which applies the gpidp in its missions. The 2000 London Declaration of International Law Principles on Internally Displaced Persons has a direct and explicit focus on children in article 2(2), where it gives them priority treatment, and in article 7, which invokes their right to family reunification. The Inter-Agency Standing Committee of the un, of which unicef is a member, describes the role of unicef in detail in a policy paper demanding a higher standard of child protection for children in displacement situations.

4.4

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The Non-binding Character of the gpidp and Protection of Internally Displaced Children

The gpidp were conceived in order to assemble in a single document all the rights of idps, a step intended to simplify and enhance their protection.64 Despite this aim, the references to children in situations of displacement in the document are sparse and limited to the three principles examined in the previous section. These principles, however, do cover all stages of displacement and set standards for governments and insurgent forces.65 Then again, the gpidp are a set of rules with a non-binding character66 and thus do not impose concrete obligations on the states that ratify them. Hence, a state that has ratified the gpidp may or may not comply with the set of norms established there. Notwithstanding their non-binding status, the gpidp ‘reflect and are ­consistent’ with international human rights and humanitarian law.67 The 64 65

66 67

Stavropoulou M International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th. Möller (2009) 373. Cohen R ‘The development of international standards to protect internally displaced persons’ in Bayefski A & Fitzpatrick J (eds) Human Rights and Forced Displacement (2000) 76; Mooney E ‘Towards a protection regime for internally displaced persons’ in Newman E & Van Selm J (eds) Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (2003) 163. Goodwin-Gill G & McAdam J The Refugee in International Law (2007) 484. Goodwin-Gill G & McAdam J The Refugee in International Law (2007) 484; Cohen R ‘The development of international standards to protect internally displaced persons’ in Bayefski A & Fitzpatrick J (eds) Human Rights and Forced Displacement (2000) 76; Zard M ‘Towards a comprehensive approach to protecting refugees and the internally displaced’

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­connection of the principles with international human rights and humanitarian law is recognised by states and the gpidp have gained recognition in the international community.68 Governments affected by internal displacement promote the gpidp through campaigns and seminars,69 and countries such as Angola, Burundi, Colombia, Sri Lanka and Turkey have even integrated them into their national legislation.70 To summarise, the gpidp impose mainly moral obligations on ratifying states to implement measures to protect displaced children.71 When states are not able to protect the rights of idps effectively,72 the gpidp urge coordination with other organisations, non-governmental organisations (ngos) and United Nations agencies.73 When considering the current plight of idps, there seem to be two major obstacles to securing a more successful protection of their rights. One is a tendency of the international community to keep its distance from the issue of internal displacement. A second is that the basic concept of the gpidp – taking international measures to protect displaced persons – conflicts with the idea of state sovereignty.74 Sovereignty ‘denotes the legal status of a State that is not subject, within its territorial jurisdiction, to the governmental, executive, legislative or judicial jurisdiction of a foreign state or to a foreign law other than public international law’.75 Regardless of a state’s sovereignty, it needs to follow international norms. In the past the international community has not interfered in cases where the sovereignty of a state could have been

68

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71 72 73 74 75

in Bayefsky A (ed) Human Rights and Refugees, Internally Displaced Persons, and Migrant Workers: Essays in Memory of Joan Fitzpatrick and Arthur Helton (2006) 17. Cohen R ‘The development of international standards to protect internally displaced persons’ in Bayefski A & Fitzpatrick J (eds) Human Rights and Forced Displacement (2000) 85; Charny J ‘Internally displaced persons’ in Forsythe D (ed) Encyclopedia of Human Rights (2009) 72. Mooney E ‘Towards a protection regime for internally displaced persons’ in Newman E & Van Selm J (eds) Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (2003) 162. Charny J ‘Internally displaced persons’ in Forsythe D (ed) Encyclopedia of Human Rights (2009) 72; Kälin W ‘The Guiding Principles on Internal Displacement as international minimum standard and protection tool’ (2005) 24 Refugee Survey Quarterly 33. Kälin W & Künzli J The Law of International Human Rights Protection (2009) 75. Kastberg N ‘Strengthening the response to displaced children’ (2002) 1(15) Forced Migration Review. Arts. 24 and 26 gpidp. Phuong C ‘Internally displaced persons and refugees: Conceptual differences and similarities’ (2000) 18(2) Netherlands Quarterly of Human Rights 225. Steinberger H ‘Sovereignty’ in Bernhardt R (ed) Encyclopedia of Public International Law (2000) 513.

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challenged. It is clearly the idps who suffer from such politically motivated refusals to take international action, a situation which has led scholars to demand that a state must accept aid from the international community if it is unwilling or unable to provide assistance to its displaced population.76 Given the possibility of interfering with a state’s sovereignty, how effective are the gpidp when it comes to protecting internally displaced children? It is widely recognised that the gpidp are a useful and practical tool in the protection of idps.77 Some authors believe that they sufficiently cover all rights of displaced people (including children). The implementation of the rights laid down in the gpidp, however, is problematic in the absence of any regulatory monitoring body.78 Consequently, idps and especially internally displaced children in many places are still denied their rights.79 Authors such as Kunder and Nylund have responded to this mismatch by suggesting that the crc should be used in the idp field to report situations of child rights abuse and that a strengthened connection between un programme agencies should be implemented as a measure to protect the rights of internally displaced children.80 Other authors claim that the gpidp fail to protect children sufficiently because the gpidp leave out important rights of idps.81 They regard the gpidp as soft law82 and, by dint of falling into this category, the gpidp are not seen as a source of international law.83 Acknowledging the gpidp as a ‘welcome standard’, the authors doubt if this document will resolve the problems of idps.84 Consequently, they highlight the need for a new convention for idps that contains a coercive system of implementing rules and provides effective protection for idps and their rights. 76

77 78 79

80 81 82 83 84

Cohen R ‘Some Reflections on National and International Responsibility in Situations of Internal Displacement’ in Mishra O (ed) Forced Migration in the South Asian Region: Displacement, Human Rights and Conflict Resolution (2004). Kälin W ‘The Guiding Principles on Internal Displacement as international minimum standard and protection tool’ (2005) 24 Refugee Survey Quarterly 30. Cohen R ‘The development of international standards to protect internally displaced persons’ in Bayefski A & Fitzpatrick J (eds) Human Rights and Forced Displacement (2000) 83. Zard M ‘Towards a comprehensive approach to protecting refugees and the internally displaced’ in Bayefsky A (ed) Human Rights and Refugees, Internally Displaced Persons, and Migrant Workers: Essays in Memory of Joan Fitzpatrick and Arthur Helton (2006) 35. Kunder J & Nylund BV Human Rights and Forced Displacement (2000) 96. Lawson E et al. Encyclopedia of Human Rights 2 ed (1996) 802. Di Robilant A ‘Genealogies of soft law’ (2006) 54(3) The American Journal of Comparative Law 499; Kälin W & Künzli J The Law of International Human Rights Protection (2009) 502. Thürer D ‘Soft Law’ in Bernhardt R (ed) Encyclopedia of Public International Law (2000) 453. Goodwin-Gill G & McAdam J The Refugee in International Law (2007) 485.

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However, both points of view are refutable: the first because quite a few countries do already apply the gpidp in their legislation, even though they still have difficulties taking concrete action to protect idps’ rights;85 and the second because states ratifying legally binding documents frequently do not comply with what they have ratified, and, moreover, if there is a need to have more than a soft law instrument to effectively protect displaced children, a binding document might not be ideal.86 6 Conclusion This chapter examined the protection of internally displaced children in legal texts, with a focus on the gpidp. A closer look at the non-binding character of the gpidp has revealed both its strengths and weaknesses in protecting internally displaced children. In contrast to the crc, the gpidp explicitly refer to displaced children in three of the 30 principles. However, despite the gpidp’s recognition of internally displaced children, the non-binding obligation to comply or implement measures leaves this instrument open to criticism. The body of the chapter argued that the lack of international norms with binding character for ensuring the protection of displaced children increases the likelihood that states dismiss their responsibilities and transfer their protective role to ngos. idps are protected against violations of their rights under their national legislation and by their government’s policies. The chapter also considered the crc’s power to guarantee displaced children their rights and found this legislative body to be powerless or at least inefficient in relation to internally displaced children.87 The non-binding character of the gpidp has helped children since its implementation. Beyond any doubt, a binding document would be more powerful in forcing states to take action. Such an approach, however, disregards observations of the past, according to which numerous State Parties have not been in the position to comply with treaties they had ratified. Hence, there are advantages to a legally non-binding document such as the gpidp: although State Parties do not have an obligation to comply and thus do not feel threatened by penalties, such documents have also proven capable of exerting influence on 85 86 87

Kälin W ‘The Guiding Principles on Internal Displacement as international minimum standard and protection tool’ (2005) 24 Refugee Survey Quarterly 33. Legally binding instruments such the op-ac have not proven to be effective as State Parties do not comply with it (Cohen 2004: 475). Kunder notes how the crc was largely condemned (1998: 2).

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state actions.88 Indeed, the gpidp have gained recognition internationally89 to such an extent that scholars like Kälin predict their acceptance into customary law, a future possibility that could significantly advance the implementation of the rights of internally displaced children. The gpidp have helped to protect displaced children by facilitating the implementation of measures as well as being inserted into several regional documents. Furthermore, it could be demonstrated that states view the gpidp mainly as guidelines rather than obligations, ones allowing and enforcing cooperation with other organisations and permitting implementation to be more flexible. Can the international legislation thus be said to protect internally displaced children? The gpidp do lay the ground for a more successful protection of idps (including children), and this is particularly so because of their non-binding character. One exemplary advantage of this document is the explicit suggestion that governments cooperate with ngos to facilitate the protection of idp’s rights. Although it is debatable whether the introduction of the gpidp in some countries’ national legislations has been effective,90 they have provided a tool with a practical application for those whose rights had no explicit legal ground prior to 1998, notably children. Bibliography Books

Brookings Institution Protecting Internally Displaced Persons: A Manual for Law and Policymakers (2008), available at http://www.brookings.edu/papers/2008/1016_internal_displacement.aspx (accessed 23 Februrary 2016). Detrick S A Commentary on the United Nations Convention on the Rights of the Child (1999) The Hague: Martinus Nijhoff. Goodwin-Gill G & McAdam J The Refugee in International Law (2007) Oxford and New York: Oxford University Press. Kälin W & Künzli J The Law of International Human Rights Protection (2009) Oxford and New York: Oxford University Press. 88 89

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Cohen R ‘The Guiding Principles on Internal Displacement: An innovation in international standard setting’ (2004) 10(4) Global Governance 475–6. Cohen R ‘The development of international standards to protect internally displaced persons’ in Bayefski A & Fitzpatrick J (eds) Human Rights and Forced Displacement (2000) 83. The gpidp have been included in resolutions of the un General Assembly (Charny 2009: 72). Kälin W ‘The Guiding Principles on Internal Displacement as international minimum standard and protection tool’ (2005) 24 Refugee Survey Quarterly 33.

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Kunder J & Nylund BV Human Rights and Forced Displacement (2000) The Hague: Nijhoff. Lawson E et al. Encyclopedia of Human Rights 2 ed (1996) Washington, DC: Taylor and Francis. Mertus J Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (2003) Tokyo and New York: United Nations University Press. Stavropoulou M International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th. Möller (2009) Leiden and Boston: Martinus Nijhoff.

Chapters in Books

Charny J ‘Internally displaced persons’ in Forsythe D (ed) Encyclopedia of Human Rights (2009) 70–9 Oxford and New York: Oxford University Press. Cohen R ‘The development of international standards to protect internally displaced persons’ in Bayefski A & Fitzpatrick J (eds) Human Rights and Forced Displacement (2000) 76–86 The Hague: Nijhoff. Cohen R ‘Some Reflections on National and International Responsibility in Situations of Internal Displacement’ in Mishra O (ed) Forced Migration in the South Asian Region: Displacement, Human Rights and Conflict Resolution (2004) New Delhi: Jadavpur University and Manak. Mooney E ‘Towards a protection regime for internally displaced persons’ in Newman E & Van Selm J (eds) Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (2003) 159–80 New York: United Nations University Press. Steinberger H ‘Sovereignty’ in Bernhardt R (ed) Encyclopedia of Public International Law (2000) Amsterdam: North-Holland Elsevier. Thürer D ‘Soft Law’ in Bernhardt R (ed) Encyclopedia of Public International Law (2000) Amsterdam: North-Holland Elsevier. Zard M ‘Towards a comprehensive approach to protecting refugees and the internally displaced’ in Bayefsky A (ed) Human Rights and Refugees, Internally Displaced Persons, and Migrant Workers: Essays in Memory of Joan Fitzpatrick and Arthur Helton (2006) 15–63 Leiden and Boston: Martinus Nijhoff.

Journal Articles

Chan PCW ‘The protection of refugees and internally displaced persons: Nonrefoulement under customary international law?’ (2006) 10(3) The International Journal of Human Rights 231–9. Cohen R ‘The Guiding Principles on Internal Displacement: An innovation in international standard setting’ (2004) 10(4) Global Governance 459–80. Cohen R & Deng F ‘Exodus within borders: The uprooted who never left home’ (1998) 77(4) Foreign Affairs 12–16.

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Di Robilant A ‘Genealogies of soft law’ (2006) 54(3) The American Journal of Comparative Law 499–554. Geissler N ‘The international protection of internally displaced persons’ (1999) 11 ­International Journal of Refugee Law 451–78. Girard G & Waldman W ‘Ensuring the reproductive rights of refugees and internally displaced persons: Legal and policy issues’ (2000) 26(4) International Family Planning Perspectives 167–73. Kälin W ‘The Guiding Principles on Internal Displacement as international minimum standard and protection tool’ (2005) 24 Refugee Survey Quarterly 27–36. Kälin W ‘Guiding Principles on Internal Displacement: The way ahead’ (2008) 102 Proceedings of the Annual Meeting (American Society of International Law) 198–201. Kastberg N ‘Strengthening the response to displaced children’ (2002) 1(15) Forced Migration Review 4–6. Kellenberger J ‘The ICRC’s response to internal displacement: Strengths, challenges and constraints’ (2010) 91(875) International Review of the Red Cross 475–90. Mahalingam S, Narayan G & Van der Velde E ‘The rights of internally displaced ­children: Selected field practices from UNICEF’s experience’ (2002) 20(2) Refuge: Canada’s Periodical on Refugees 34–44. Mooney E ‘The concept of internal displacement and the case for internally displaced persons as a category of concern’ (2005) 24(3) Refugee Survey Quarterly 9–26. Phuong C ‘Internally displaced persons and refugees: Conceptual differences and similarities’ (2000) 18(2) Netherlands Quarterly of Human Rights 215–29. Toole M & Waldman R ‘The public health aspects of complex emergencies and refugee situations’ (1997) 18(1) Annual Review of Public Health 283–312.

Reports

Koskinen P Internally Displaced Persons and the Right to Housing and Property Restitution (2005) Report No. 23, available at https://www.abo.fi/media/24259/report23 .pdf (accessed 23 February 2016). Kunder J The Needs of Internally Displaced Women and Children: Guiding Principles and Considerations (1998), available at http://reliefweb.int/sites/reliefweb.int/files/reso urces/2E33B9CFFB3B8F7BC1256C7C004EFCAA-UNICEF.pdf (accessed 23 February 2016). The Internal Displacement Monitoring Centre (IDMC) Displaced Global Overview 2014: People Internally Displaced by Conflict and Violence (2014), available at http:// www.internal-displacement.org/assets/publications/2014/201405-global-overview2014-en.pdf (accessed 23 February 2016).

Miscellaneous

Newman J ‘Protection through participation: Young people affected by forced migration and political crisis’ (2005) RSC Working Paper No. 20, Oxford: Refugee Studies Centre.

chapter 22

Protecting the Victims of Child Trafficking Philip E. Veerman1 Abstract This chapter puts the spotlight on one of the darkest corners of child protection – child trafficking. It is very hard to obtain reliable statistics on child trafficking due to its illegal nature and minors’ fears about talking to the police about their traffickers. Twentyfive years after the crc (and article 35 on trafficking) was adopted, traffickers seem to be benefitting from globalisation, and the crime of (child) trafficking seems to be an unstoppable phenomenon. The chapter addresses the lack of clarity of article 35 of the crc and its overlap with other Conventions, and formulates extensive recommendations for a General Comment on this article by the un Committee on the Rights of the Child. These recommendations and the chapter as a whole appeal for a bolstering of the best-interests-of-the-child approach to child trafficking.

1 Introduction As the European Commission has noted, victims of trafficking are often recruited, transported or harboured by force, coercion or fraud in exploitative conditions, including sexual exploitation, forced labour or services, begging, criminal activities, or the removal of organs. It is a severe violation of individual freedom and dignity and a serious form of crime that often has implications which individual countries cannot effectively address on their own.2

1 The author wishes to thank Mr Frank Noteboom, llm, ma, a researcher at the Office in the Hague of the National (Dutch) Rapporteur (on Trafficking in Human Beings and Sexual ­Violence against Children), for his comments and suggestions. 2 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions The eu Strategy towards the Eradication of Trafficking in Human Beings 2012–2016 Brussels, 2, com (2012) 286 final.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_023

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Child victims of trafficking certainly are, as Jean Zermatten describes it, ‘victims of the worst abuses of power by adults’.3 In line with the Dutch National Rapporteur’s assertion that ‘the best interests of the child has to become the starting-point for the protection of victims who are minors’,4 this chapter makes an appeal for anti-trafficking measures to be more attuned to those best interests5 and use procedures that are less stressful for the child. However, in that regard, the text of the un Convention on the Rights of the Child (crc) is not of much help, due its vagueness (and vintage). Were the Committee on the Rights of the Child at least to make a General Comment on article 35 (trafficking), it could bolster the best-interests-of-the-child approach. This chapter calls precisely for such a General Comment, in order that it serve as a foundation for a larger process of strengthening the rights of child victims. As such, the chapter provides suggested wording for it, and also addresses a lack of clarity in the crc’s terminology as well as its overlaps with other conventions. In this chapter I draw on my knowledge of children’s rights (having worked in this field at an international level), psycho trauma (having been a psychologist for the past ten years), and project leadership in inter-agency cooperation against child trafficking, specifically for the Dutch organisation Nidos, which exercises guardianship over unaccompanied minor asylum seekers. The Dutch system of guardianship was recognised as an example of good practice in the publication Guardianship for Children Deprived of Parental Care, which noted that ‘[e]ffective guardianship systems are key to preventing abuse, neglect and  exploitation’.6 While trafficking can also occur within countries,7 this chapter – given the context above – deals with children ­trafficked ­between countries.

3 Zermatten J (ed) Trafics d’enfants: une fatalité? De la Réalité du terrain aux meilleures practiques (2005). 4 Nationaal Rapporteur Mensenhandel en Seksueel Geweld tegen Kinderen Mensenhandel: Naar een kindgericht beschermingssysteem voor alleenstaande minderjarige vreemdelingen (2015) 111. 5 Freeman M A Commentary on the United Nations Convention on the Rights of the Child: Article 3 (The Best Interests of the Child) (2007). 6 fra: European Union Agency for Fundamental Rights Guardianship for Children Deprived of Parental Care: A Handbook to Reinforce Guardianship Systems to Cater for the Specific Needs of Child Victims of Trafficking (2014). 7 Brayley H & Cockbain E ‘British children can be trafficked too: Towards an inclusive definition of internal child sex trafficking’ (2014) 23(3) Child Abuse Review 171–84.

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Modern Globalisation and Trafficking

It is worth reflecting that the crc’s adoption by the un General Assembly on November 20, 1989 took place only days before the fall of the Iron Curtain and that the proposal for the Convention came from the People’s Republic of Poland, making the crc very much a product of the Cold War period. It is worth reflecting, too, that in 1985 France, Germany, Belgium, Luxembourg and the Netherlands created a territory without internal borders, which became known as the ‘Schengen area’. After the fall of the Berlin Wall, some former Warsaw Pact states, along with others, joined the European Union and Schengen area. Time is money, and it was important for business that lorries not be stopped and inspected by customs officials; the disadvantage is that it made it easier for traffickers to bring someone – smuggled perhaps by speedboat from Morocco or Libya to the coast of Spain or Italy – into Holland or Germany without passing through border controls. The refugee crisis and recent terrorist attacks in Europe have led to a new debate on ‘Schengen’, but cars lining up in Europe for passport controls (as happened before the Schengen Agreement) does not seem to be on the cards. The post-Cold War era has been characterised by increasing global travel. Scholte,8 who has tried to find a clear definition of globalisation, points to movements across the globe of domestic and sex workers as examples of new transplanetary social connections. Trafficking has become an issue of worldwide significance since the adoption of the crc, yet while a number of organisations engage with it, among them the United Nations Organisation against Crime and Drugs (unodc), there is no political will to give trafficking the priority it deserves. unodc combats it with a mere seven or so staff members, and the Inter-Agency Coordination Group against Trafficking in Persons (icat), a coordination body of agencies such as unicef and the ilo, has remained insignificant and without much power.9 Historically, efforts towards such international regulation were first proposed in Basel10 in 1901 in the discussions on the International Agreement for 8

9 10

Scholte JA Globalization: A Critical Introduction 2 ed (2005). Scholte JA ‘What is Globalization? The Definitional Issue – Again’ csgr Working Paper No. 109/02 December 2002, Centre for the Study of Globalisation and Regionalisation (csgr), University of Warwick, Coventry (later published as ‘Defining globalisation’ (2008) 31(11) The World Economy 1471–502). Forss K Working against Trafficking through the Multilateral System: A Study of Coordination between un Agencies at Global, Regional and National Levels (25 October 2012). See Veerman PE The Rights of the Child and the Changing Image of Childhood (1992) 323–24. For recent thoughts on this issue see Doezema J ‘Loose women or lost women?

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the Suppression of the White Slave Traffic. Article 1 of this Agreement required governments to establish authorities for coordinating ‘information relative to the procuring of women and girls for immoral purposes abroad’. And article 2 called for a watch to be kept, ‘especially in railway stations, ports of embarkation, and en route[,] for persons in charge of women and girls destined for an immoral life’. At the start of the twentieth century, then, concerns were already expressed about trafficking. However, it is likely that this international agreement was created less out of concern for girls and young women than for the spread of venereal disease; if concerns have been there for the victims, these were extended – as the agreement’s title implies – only to white European women. Nor were there many concerns in the early twentieth century for boys, given the taboos surrounding homosexuality. Nowadays (as no doubt in 1901) boys are trafficked, though not always necessarily to prostitute them: sometimes the aim is for boys to work, for instance, on cannabis farms, where they are locked in suburban houses, have to sleep amidst the fumes of the plants and (when the police roll up to the place) sometimes have no idea which country they are in.11 While the origins of trafficking are older than modern globalisation, the latter has altered the former in terms both of the concerns it raises and its nature itself. Trafficking has grown into an even bigger business than it was at the beginning of the twentieth century. In addition, the cost of plane tickets is often cheap, and new ways of recruiting minors via the Internet create new challenges.12 Kunze explains that ‘because of the highly unregulated nature of the Internet, pimps and those who purchase trafficked women and children are able to use this platform for criminal purposes with minimal risk of prosecution’. Although the exploitation of children by traffickers is not new, modern technologies have endowed it with new forms, and with evident worldwide implications. At the time the crc was drafted, nobody could have imagined the extraordinary, and devastating, impact of these excrescences of globalisation and its accelerated human mobility on sexual exploitation. 11

12

The ­re-emergence of the myth of “white slavery” in contemporary discourses of “trafficking in women”’ (2000) 18(1) Gender Issues 23–50. ‘3,000 children enslaved in Britain after being trafficked from Vietnam’ The Guardian 23 May 2015; race in Europe project Briefing: Trafficking for forced labour in cannabis cultivation (2013). See also Nguyen K ‘Abused, imprisoned Vietnamese slave away in uk’s cannabis farms’ Reuters 25 February 2015. Kunze EI ‘Sex trafficking via the internet: How international agreements address the problem and fail to go far enough’ (2010) 10 J. High Tech. L. 241–89.

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The Place of Child Trafficking in the crc

In the draft of the crc Poland set out in 1978, child trafficking was incorporated in article ix, which laid the basis for the 1989 article 35 on child trafficking.13 According to this 1978 version: 1. 2.

The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form. The child shall not be admitted to employment before an appropriate minimum age; he shall in no case be caused or permitted to engage in any occupation or employment which would prejudice his health or education, or interfere with his physical, mental or moral development.14

A submission in 1987 by the Informal ngo Ad Hoc Group for the Drafting of the Convention15 initiated debate in the Working Group set up to discuss the draft Convention. Various delegations proposed ‘that there was a need of two separate articles, one protecting the child from sexual exploitation and another protecting the child specifically from traffic’. They maintained that the problem of the sale or traffic of children was wider in scope than that of sexual exploitation of children and children were subjected to sale or trafficking for many reasons: economic exploitation, sexual exploitation and sexual abuse, as well as for reasons of adoption or labour. Traffic or sale of children had international ramifications and required bilateral and multilateral measures for the protection of children.16 In the drafting of the crc, ‘the exploitative use of children in prostitution’, the ‘exploitative use of children in pornographic performances and materials’17 13

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16 17

The final text of article 35 adopted by the General Assembly on 20 November 1989 reads: ‘States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction, the sale of or traffick in children for any purpose or in any form.’ This text can be found in the 1978 report of the Commission on Human Rights (E/CN.4/L.1366) 125. See: Office of the United Nations High Commissioner for Human Rights Legislative History of the Convention on the Rights of the Child Vol. 2 (2007) 723. Emphasis added. The 1987 report of the Working Group to the Commission on Human Rights (E/CN.4/ 1987/25), paras. 71–83. See Office of the United Nations High Commissioner for Human Rights Legislative History of the Convention on the Rights of the Child Vol. 2 (2007) 723–30. Legislative History of the Convention on the Rights of the Child Vol. 2 (2007) 726. Art. 34(b) and (c) crc.

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and ‘the abduction of, the sale of or traffic of children’ were separated into two articles, articles 34 and 35. When the crc was adopted, it was believed the provisions relating to child protection, notably articles 19, 32, 34, 35 and 35, were sufficient to address all forms of exploitation of children, since article 34 of the crc asks States Parties to protect children from all forms of sexual exploitation and abuse and take measures against three particular, and often interlinked, forms of exploitation: sexual abuse, prostitution, and use in pornography.18 Thus, child trafficking came in the text of the Convention in an attempt to single out this form of exploitation and distinguish it from the others. The focus of article 35 was on measures states should take to prevent child trafficking, not on what rights the victims of child trafficking have. However, the separation of child trafficking from child prostitution and pornography did not end in 1989 with the crc’s adoption. In the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children,19 Child Prostitution and Child Pornography,20 there is no explicit reference to ‘trafficking’, although it could be argued that the sale of children is virtually the same as child trafficking and almost overlaps with it in article 3 of the Optional Protocol.21 Despite this, it is curious that an Optional Protocol that promotes a holistic approach does not mention child trafficking more specifically, although there is an overlap. In 1990 the United Nations Commission on Human Rights (unchr) appointed a Special Rapporteur on the sale of children, child prostitution and 18 19

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I thank Judge Jean Zermatten, former chair of the un Committee on the Rights of the Child, for pointing this out to me. It might be interesting to note that in the Netherlands the sale of a child is not the same as trafficking (for instance, buying a child on the black market for an illegal adoption is only trafficking when there is also an element of exploitation). This Optional Protocol had been adopted and opened for signature, ratification and accession by the General Assembly in Resolution A/RES/54/263 of 25 May 2000 and entered into force on 18 January 2002. The first part of article 3 reads as follows: ‘1. Each State Party shall ensure that, as a minimum, the following acts and activities are fully covered under its criminal or penal law, whether these offences are committed domestically or transnationally or on an individual or organized basis: (a) In the context of sale of children as defined in article 2: (i) offering, delivering or accepting, by whatever means, a child for the purpose of a. sexual exploitation of the child; b. Transfer of organs of the child for profit; c. Engagement of the child in forced labour; (ii) Improperly inducing consent, as an intermediary, for the adoption of a child in violation of applicable international legal instruments on adoption; (b) Offering, obtaining, procuring or providing a child for child prostitution, as defined in article 2.’

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child pornography.22 Paragraph 2 of Resolution 1990/69 on the Sale of Children refers to Principle 9 of the United Nations Declaration on the Rights of the Child23 of 1959: ‘The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form’. In formulating the only mandate of a Special Rapporteur solely dealing with minors, child trafficking was not mentioned specifically. Maud de Boer-Buquicchio, the present un Special on the sale of children, child prostitution and child pornography, includes (rightly so) trafficking in her reports24 and work. But the vagueness of the wording of the Special Rapporteur’s mandate is not helpful. In 2004 the omission was corrected to a degree with the establishment of another mandate of a Special Rapporteur, namely the Special Rapporteur on trafficking in persons, especially women and children.25 However, the Convention on the Rights of the Child (and its Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography) is just a bridgehead from which the cannons can fire at the child trafficking phenomenon.26 From two other positions, the cannons of the Palermo Protocol (The un Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children) and Convention 182 of the International Labour Organisation (Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour) are firing. Whether the battle can be won if there is no joint military leadership remains to be seen, but the prognosis looks doubtful. As Dotteridge observes: 22

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un Commission on Human Rights, Resolution 1990/68 on the Sale of Children. Maud de Boer-Buquicchio (the present Special Rapporteur on the sale of children, child prostitution and child pornography) is of the opinion that the name given to her mandate implies that the sale of adults and prostitution by adults is more or less acceptable (as only child trafficking and child prostitution seem not desirable). The Rapporteur informed me that she will make a proposal to rename her mandate. un Declaration on the Rights of the Child proclaimed by General Assembly Resolution A/RSE/141386 (xiv) of 20 November 1959. United Nations A/70/222 General Assembly Distr.: General 31 July 2015 Seventieth session Item 69 (a) of the provisional agenda: Promotion and protection of the rights of children: sale of children, child prostitution and child pornography: the report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Maud de BoerBuquicchio, in accordance with Assembly resolution 69/15. The Commission on Human Rights, Resolution 2004/110 of 19 April 2004. An element of child trafficking can also be found in the other Optional Protocol from 2000: see Valentine S ‘Trafficking of child soldiers: Expanding the United Nations Convention on the Rights of the Child and its optional protocol on the involvement of children in armed conflict’ (2003) 9(1) The New England Journal of International and Comparative Law 109–34.

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[P]lenty of confusion stems from all these overlaps. The wrangling about whether counter-trafficking programmes should focus primarily on cases of sexual exploitation still has not stopped, and the lack of clarity between the categories of human trafficking, people smuggling and irregular migration grow rather than diminish as you look at what happens in reality.27 There is also a lack of clarity between the definitions of sale of children, exploitation and trafficking. These definitions overlap to a certain extent, leading to confusing debates and real problems that must be dealt with. All these perspectives must be taken into account and acted on in a coordinated way if we want to combat child trafficking in an effective manner. But we have not come to the end of the definition problems yet. 4

Debating the Definition of Human and Child Trafficking

Article 3(a) of the Palermo Protocol28 defines ‘trafficking in persons’ to mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. Europol gives a useful summary of the main elements of ‘child trafficking’, which involves the recruitment of victims, their transportation, transfer and harbouring of children for the purpose of exploitation. Coercion, violence 27

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Dotteridge M ‘Patterns of child trafficking around the world: Challenges in distinguishing between trafficked children, child workers and child migrants’ in Zermatten J (ed) Trafics d’enfants: une fatalité? De la Réalité du terrain aux meilleures practiques (2005) 49–60. Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, un General Assembly, Resolution 55/25 (15 November 2000).

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or threats are not necessary elements in cases of child trafficking as children cannot consent. Children are trafficked for the same purposes as adults: for sexual exploitation, for labour exploitation, but also for exploitation in a range of criminal activities, including begging.29 In the same intelligence notification, Europol identifies ‘key trends’ in child trafficking: First of all it is often difficult to identify victims of trafficking in human beings. This is particularly true in cases of child trafficking. Second: cases of trafficking of children for exploitation in forced begging or in forced criminal activity are often falsely perceived as public order issues or petty property crimes. Third: children are at high risk of undergoing secondary victimisation by being considered perpetrators of petty crime rather than victims of exploitation. Child victims are also at risk of being re‐trafficked after their release from the authorities. And last: Organised crime groups specifically target families in difficult social and economic circumstances. Attempts have been made to give human trafficking a broader interpretation.30 An instance where vulnerable adolescents were accompanied by some other adolescents (part of a gang) to phone stores to buy cell phones under a false address and later give the phones to the leader of the gang was brought to the Dutch courts by the prosecution as a case of human trafficking.31 Why was this seen as trafficking by the prosecution? The buying of a cell phone and giving the phone to the leader of the gang or his representative was done by force and/or violence and/or the threat of using force and/or fraud and/or extortion and/or misleading the victim and/or misuse of the vulnerable position of the minor(s) who is (are) the victim(s). Other adolescents were also recruited to put pressure on more vulnerable adolescents. The case illustrates that the use of force is part of the definition of trafficking in persons, and here violence is understood to include the deception and 29 30

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europol ‘Intelligence Notification: Child trafficking for exploitation in forced criminal activities and forced begging’ (October 2014). The Dutch National Rapporteur Ms. Dettmeijer-Vermeulen discusses this approach in an article (with Luuk Esser): Esser L & Dettmeijer-Vermeulen C ‘Een nieuw beoordelingsschema voor het bewijs van uitbuiting buiten de seksindustrie? Van aardbeien en telefoonabonnementen’ (2015) trema (Tijdschrift voor de Rechtelijke Macht) October, 262–7. Case 02/800800-13. The author of this chapter did a psychodiagnostic evaluation as a independent expert/ forensic psychologist of the young man who was one of the accused.

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misuse of someone in a vulnerable position.32 A further issue that the case of young people pressured to convince other vulnerable youngsters into buying cell phones raises is that a young person who is a victim can be ‘promoted’ by the trafficker to a position higher in the criminal organisation (for instance, a girl who was first forced into prostitution becomes a madam exploiting other girls as prostitutes, and the young man who was pressured into ‘selling’ cell phones becomes an assistant to the gang leader). In these cases, is the adolescent or young adult a victim or a trafficker as well?33 In studies on the consequences of trauma, the phenomenon of identification with the aggressor is often overlooked. It was Anna Freud who pointed out that trauma is experienced as an attack on the ego and can lead to (unconscious) identification with the aggressor.34 A young man or woman who was once a victim can later assume a role in the criminal organisation. The Dutch National Rapporteur has explained that trafficking must be understood as a fundamental violation of human rights. But what a fundamental violation is depends on the circumstances, she explained. Another complication in defining ‘trafficking in persons’ is that it is sometimes confused with ‘smuggling’. For the police, the immigration authorities and others (in the Netherlands, for example, the guardianship organisation Nidos), it is often not so easy to know what problems the children who appear before them have. For instance, in 2014 six boys from Albania were taken out of a lorry in the Netherlands. As is commonly the case, they had confusing and conflicting stories, making it hard to discern if they were on their way to a situation of exploitation. Were they children who had been ‘only’ smuggled into the country, or were they also victims of trafficking? 32

Tyldum describes this very well: ‘I have come to understand trafficking as systematic exploitation of vulnerabilities inherent in migration. These vulnerabilities are not the creation of traffickers or exploiters, but are produced by underlying factors such as poverty and economic inequality, discrimination against women, and lack of opportunities for migration. […] However, these vulnerabilities create an area that makes exploitation possible, and one that traffickers can manipulate to keep their victims in a situation where continued exploitation is possible.’ Tyldum G ‘Dependence and human trafficking in the context of transnational marriage’ (2013) 51(4) International Migration 103–15. 33 The race in Europe project is studying such cases and is a two-year initiative by AntiSlavery International and its partners (such as ecpat uk) to improve knowledge and responses to human trafficking for the purposes of forced criminal exploitation and forced begging in Europe. The project aims to ensure that victims are treated as such rather than as criminals, and are provided with appropriate support. 34 Freud A The Ego and the Mechanisms of Defence Vol. 2 (1936, revised edition 1977). See also Blum HP ‘The role of identification in the resolution of trauma: The Anna Freud Memorial Lecture’ (1987) 6(4) Psychoanalytic Quarterly 609–27.

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At Nidos, the project I led was involved in two cases that illustrate the difference between trafficking and smuggling (as well as the difficulties in telling them apart in practice). The first was that of an 11-year-old girl from Burundi who had walked several kilometres to the Ter Apel reception centre. She looked weak (it turned out she had tuberculosis) and told the Nidos representative that in Burundi she had worked in prostitution. A Dutchman had brought her to the Netherlands, where she continued sex work in the north of the country: a clear case of trafficking. The second case was of three Afghan adolescents who were brought to Ter Apel. Originally these boys were accompanied by an adult, but he had disappeared. Police in Rotterdam rescued them from a lorry transporting meat. They were on the way to their brother in the United Kingdom and wanted to go to Calais. When placed by the guardian of Nidos in the coa/Jade Safe House, they were like tigers in a cage and escaped on the first night. With some children, in other words, it is not clear if smuggling or trafficking is involved. Trafficked children are often tricked: somebody gains the target’s trust and says, ‘You can work in my company or shop in Europe’ or ‘You can become a hairdresser’. Once in ­Europe, the harsh reality emerges: the children cannot go home, their passports are taken, and they are told it will take a long time for them to earn back their documentation and the costs of their trip. A Dutch public prosecutor explained the difference between smuggling and trafficking well: smuggling is a crime against the public order, the state is the victim, and the activity need not involve the exertion of pressure (even though the smuggler might take advantage of a desperate situation and charge a large amount of money for the journey).35 In the case of human trafficking, however, it is not necessary that a border must be crossed (one can be trafficked within a country): the main element is that the perpetrator intends to exploit the victim. In the case of children it does not need to be proven that there is exploitation in order to classify it as child trafficking, because the use of force has been already assumed. ‘Smuggling’ and ‘trafficking’ can be understood as the opposite ends of a continuum. However, there could also be an overlap between the two. Often people who are smuggled over borders have to work in the country of destination to earn the money which they promised to pay the smugglers for the journey; the smugglers know the client has no money and can apply pressure to make him or her work hard for long hours. Here, ‘smuggling’ could overlap 35

Martens E, public prosecutor, lecture at the Conference by the ind and kmar (rnlm): ‘Smuggling of human beings and trafficking of persons: Similarities and differences’ [in Dutch] 28 October 2014, The Hague.

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with or result in ‘trafficking’. The smugglers know how to find the clients if they stop paying, and threaten to cut off an ear from the mother or harm a little sister or brother at home if they stop paying. With minors, as already explained above, it is not necessary for pressure to be used for it to be labeled ‘child trafficking’. An act of bringing a child from one place to another can be called ‘trafficking’ by the mere fact that it concerns a minor and the intention to exploit the child. Cree et al. contend in a controversial article that by treating them as minors, we are [sic] undermining their agency […] Child trafficking can never be assumed to be consensual […] But, does it not seem likely that a seventeen-year-old might agree to be trafficked, in order to escape to a safer country?36 Cree et al. see children as little adults, in respect of whom a duty to protect seems to depend, at least in some degree, on the ‘consent’ of the minor to be trafficked. I would like to make one thing clear: as explained above, consent is always irrelevant in determining whether the crime of human trafficking has occurred.37 Cree et al. claim that society is unnecessarily in a ‘moral panic’38 (a term they found in the work of the sociologist Stanley Cohen). They conclude this because there have not been many cases in which traffickers have been convicted. They are correct that the numbers of convicted traffickers are still modest. However, Cree et al. are, I suggest, in ‘a state of denial’39 (also a term from Stanley Cohen). They do not wish to see that such children can be forced into prostitution or other forms of exploitation or slavery. They assume some sort of equality in the relationship between the trafficker and the child, 36 37

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Cree VE, Clapton G & Smith M ‘The presentation of child trafficking in the uk: An old and a new moral panic?’ (2014) 44 British Journal of Social Work 418–33. The Trafficking in Persons Protocol unequivocally rejects the consent to the offence of trafficking children. Trafficking in children is established by the fact of an ‘act’ and exploitative ‘purpose’, without ‘means’ required as an element of the ‘offence’. See Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, Adopted by the un General Assembly, Resolution 55/25 of 15 November 2000. See also http://www .unodc.org/documents/human-trafficking/2014/UNODC_2014_Issue_Paper_Consent.pdf. Cohen S Folk Devils and Moral Panics: The Creation of the Mods and Rockers (1972). Cohen S States of Denial, Knowing about Atrocities and Suffering (2000). See also Reid JA & Jones S ‘Exploited vulnerability: legal and psychological perspectives on child sex trafficking’ (2011) 6(2) Victims and Offenders: An International Journal on Evidece Based Research, Policy and Practice 207–31.

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which is absolutely not the case; they also confuse smuggling with trafficking. Cree and her co-authors (who teach at schools of social work) underestimate the problem. A state of denial can be dangerous, as has been illustrated in Rotherham where children have been sexually exploited on a large scale: The issue of child sex abuse in Rotherham first came to light in November 2010 when five men from the town’s Asian community were jailed for sexual offences against underage girls. But suspicions were already growing that the scale of the town’s problem was far more widespread. Almost two years later, in September 2012, Andrew Norfolk, a journalist on The Times newspaper, published an investigation which revealed a confidential 2010 police report had warned thousands of such crimes were being committed in South Yorkshire each year by networks of Asian men.40 The individual case of the disc jockey Jimmy Savile who abused so many young people and was only exposed after his death might also warn us that it is not so easy to read the signs41 but easy to deny them. There are however cases where wrong conclusions have been drawn, as in the case of the Scottish island Orkney, where police and social workers in 1991 thought that in several family homes children had become victims of a devil-worshipping paedophile ring. In this case the allegations were dismissed.42 The above cases are not examples of trafficking but usefully show how easily we can deny the signs and how careful we must be when drawing conclusions. With (child) trafficking the human rights abuses are so serious and the way pressure (such as voodoo)43 is applied so unusual, that one can understand why even trained professionals are in a state of denial. In sum, all these discussions about the definition of (child) trafficking make the fight against the traffickers more complicated. Hussein elaborates on the tensions that surround the interpretation of the definition of human trafficking, arguing that the main group to have been affected by the relevant yet inept international and individual state regulations is the trafficked people, while traffickers themselves tend largely to escape punishment; she concludes that 40 41 42 43

bbc News ‘Rotheram child abuse: The background to the scandal’ 5 February 2015. Davies D In Plain Sight: The Life and Lies of Jimmy Savile (2014). The Scotsman ‘Orkney abuse scandal victim to sue for lost youth’ 11 September 2006. Baarda CS ‘Human trafficking for sexual exploitation from Nigeria into Western Europe: The role of voodoo rituals in the functioning of a criminal network’ (2016) European Journal of Criminology, March 257–73.

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so far little has been done to address the problem, which will become significantly worse before it sees any improvement.44 5

Efforts to Get Reliable Data about Child Trafficking

According to the Walk Free Foundation’s Global Slavery Index, almost 36 million people are trapped in slavery of some kind.45 Brian Donald, Europol’s chief of staff, said that 10,000 unaccompanied child refugees have disappeared in Europe and he warned that ‘many could be in the hands of traffickers’,46 but no concrete data were provided. In 2013 Eurostat published the first working paper on trafficking in persons in Europe, concluding that [c]hildren are the most vulnerable group of victims of trafficking in human beings. To increase knowledge of the age-specific aspects of trafficking in human beings, Member States were asked to provide a breakdown on the total numbers of victims by age. Based on the data on identified and presumed victims from 19 eu Member States, the percentage of children is close to 15% across the three reference years.47 In the Netherlands, the National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children observed that ‘a lot of statistics are 44

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Hussein RA ‘The existing tensions in the defining of human trafficking at a uk and international level: A critical overview’ (2015) 39(2) International Journal of Comparative and Applied Criminal Justice 129–38. Walk Free Foundation The 2014 Global Slavery Index (2014). This foundation (based in Australia) estimates that there are 35.8 million people living in some form of modern slavery globally. ‘The estimated prevalence of people in modern slavery has increased from 2013. It is important to note that we are not asserting that there has been an increase in modern slavery around the world over the last year. We believe that the majority of this increase is due to the improved accuracy and precision of our measures, and that we are uncovering modern slavery where it was not found before’. Researcher Ieke de Vries and the Dutch National Rapporteur Corrine Dettmeijer point out that the number game (as done by the Walk Free Foundation) can make things more complicated and confusing. See De Vries I & Dettmeijer-Vermeulen C ‘Extremely wanted: Human trafficking statistics – what to do with the hodgepodge of numbers?’ (2015) 8 Forum on Crime and Society 15–36. See also Gallagher AT ‘The global slavery index is based on flawed data – why does no one say so?’ The Guardian 28 November 2014. Philipson A ‘Thousands of child migrants have vanished inside Europe’ The Daily Telegraph 1 February 2016, 14. eurostat Trafficking in human beings (2013) 342.

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a­ lready available about who are possible victims and what use they make of the facilities and resources that exist to protect them’. Further to this, it was found that over the entire period 2008–2012, the vast majority of the registered possible victims were women (87%) and 15% were minors. The largest group of possible victims in the period were aged between 18 and 24 (38%). In each year, the largest group of possible victims were Dutch, often followed by Bulgarians, Hungarians, Romanians and Nigerians (with the order changing from one year to another). In all, 30% of the possible victims in the period 2008–2012 were from Central and Eastern Europe and 24% were from African countries.48 Unaccompanied minors are even more vulnerable to the pressures of traffickers, and testifying before the police and the court can put their lives in danger. What makes it all the more complicated is that the crimes are often committed in several countries and you need cooperation between states to get a conviction. Since 2013 the Dutch guardianship body Nidos has been reporting potential victims to CoMensha, the relevant Dutch coordinating body. As a result of this the National Rapporteur performed a baseline measurement of the number of unaccompanied minor aliens who were placed in protected shelters49 in the period 2008–2012 due to suspicions of human trafficking. Many of these minors are from Guinea, Sierra Leone and Nigeria, although there were also substantial numbers of Indian, Chinese and Angolan children of various age groups. We are gradually getting a better idea of the scale of the problem; getting traffickers convicted is another challenge altogether, and an enormous concern. There are many individual cases, and a great deal of coordination and attention to seemingly insignificant signs is needed in order to identify a meaningful pattern. In the uk, where the government recently conducted a review of the effectiveness of its human trafficking legislation,50 only two traffickers were convicted in 2011, whereas in that same year 202 children were identified as having been trafficked into and within the uk between January and September 2011. The Office of the Dutch National Rapporteur found that if we look at 48

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National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children Trafficking in Human Beings: Visible and Invisible ii. Summary of the Quantitative R ­ eport 2008–2012 (2014). The Safe Houses (separate facilities for boys and girls) are where Nidos places minors. Report on the Internal Review of Human Trafficking Legislation (May 2012) hm Government.

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the group of adolescents who were admitted to the Shelter between 2008 and 2012 there were hardly any convictions of a traffickers of minors from Africa or Asia. However, there were convictions of traffickers of Eastern European minors51 as well as of traffickers of Dutch minors.52 6

Concluding Observations of the Committee on the Rights of the Child

States Parties report to the un Committee on the Rights of the Child (and under ‘special protection measures’ have to report on the implementation of article 35 on trafficking), after which there is a constructive dialogue with the Committee. This is followed by Concluding Observations made by the Committee, which include recommendations to do with article 35. However, these Concluding Observations are often very general in nature, as illustrated by those made in 2009 regarding the Netherlands, where it is recommended that the States Party: (a) Strengthen its efforts to reduce and prevent the occurrence of sexual exploitation and trafficking of children and child sex tourism, through, inter alia, undertaking a comprehensive study and data collection of the occurrence and the dimension of the problems and implement comprehensive strategies and policies; (b) Strengthen cooperation with the authorities of countries from or to which children are trafficked in order to combat the phenomenon; (c) Continue to sensitize professionals, parents, children and the general public to the problems of sexual exploitation of children, child trafficking and child sex tourism through education, including media campaigns.53

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From the report of the Dutch National Rapporteur (Nationaal Rapporteur Mensenhandel Mensenhandel: naar een kindgericht beschermingssysteem voor alleenstaande minderjarige vreedelingen (2015)) it also follows that it is difficult to find and prosecute the traffickers who exploit unaccompanied minors. The Dutch Rapporteur argues that child trafficking can only be dealt with effectively if the perpetrators are prosecuted and stopped. Protection of victims and prosecution of traffickers are two sides of the same coin, she argues. These Dutch minors are not placed in the Shelter run by the coa and Jade organisations but in regular closed youth care institutions. Committee on the Rights of the Child, Fiftieth session, Concluding Observations: the Netherlands, CRC/C/NLD/CO/3, 27 March 2009.

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With regard to the first recommendation, at the time the Netherlands a­ lready had a highly active (and independent) National Rapporteur, whose ­office – in operation since 2000 – collects data on a daily basis from agencies. The second recommendation is difficult to implement. For instance, many minors from Eritrea are potential victims of trafficking, but cooperating with a state where human rights are abused daily is hard. The last recommendation could apply as well to all other States Parties to the crc. To consider another example briefly, Nigeria is a States Party with many ‘push factors’ that drive trafficking, and the Committee’s 2010 Concluding Observations do pay attention to child trafficking.54 But in Nigeria the issue is of such enormous proportions that one gets the impression that much more is needed than what was recommended. For instance, the serious problem of corruption (such as in the police force) is not mentioned. We can’t have different standards of implementing the crc for the Netherlands and for Nigeria, for example. All the States are in this together and must fight trafficking on the same level. The member of the Committee of the Rights of the Child who prepares the draft Concluding Observations might pay more attention to other pressing issues for which there might be a strong lobby. It might also be an issue of style of the Committee member who writes the draft. In the Concluding Observations on Romania,55 to give another example, the Committee provides one paragraph of observations and one large paragraph of recommendations. Developing countries, however, have to take the same steps but must be assisted by agencies like unodc or unicef and their budgets have to be adapted accordingly. 7

Recommendations Towards a General Comment on article 35 of the crc

Against the context described in the previous sections, it is apparent that, as indicated in the introduction to this chapter, a General Comment from the Committee on the Rights of the Child on article 35 (child trafficking) would be important for strengthening the rights of victims of trafficking, even though many key principles and rights are already formulated in other conventions

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Committee on the Rights of the Child, Forty-fourth session, Concluding Observations: Nigeria, CRC/C/NGA/CO/3-4, 11 June 2010. Committee on the Rights of the Child, Thirty-second session, Concluding Observations: Romania, CRC/C/15/Add.199 18 March 2003.

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and guidelines. This section presents a number of building blocks for the proposed new General Comment:56 • The best interests of the child (art. 3 crc) have to be the starting-point, and in all circumstances the victims of child trafficking should be treated with respect. The General Comment can help to open the eyes of authorities to the reality that trafficking victims are perhaps the most vulnerable of children, undergoing traumatic experiences that often cause delays in emotional development. Child trafficking is one of the worst violations of human rights. Here it is certainly true that ‘mankind owes to the child the best that it has to give’,57 and everything possible has to be done to understand these young people and ensure that their views are taken into account. For this, a coordinated and integrated child protection system (where it is clear which partners have to take responsibility in which situations) that strengthens family systems58 and resilience is necessary. • To this end, all agencies and organisations that deal with a child who is a potential victim of trafficking need to cooperate as much as possible on the basis of child-sensitive child protection mechanisms and empowerment. The child has to get the feeling that he or she has a future again and the victim has a chance to rebuild his or her life. 56

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The conclusion that the rights of child victims of trafficking are at present not well formulated was mentioned by various partners in the project Inter-Agency Cooperation against Child Trafficking, which I coordinated for the Nidos. I thank the following colleagues for the suggestions they gave me regarding the proposed General Comment: Ms Ineke van Buren of Fier Frieslân; Dr Coby Rijken of intervict of the University of Tilburg; Ms Inge Hidding, attorney at law at the firm Hidding, Breuls, Meijerink; Ms. Nanette Weteling, attorney at law of Mosa Attorneys at Law; Dr Kees Laban, psychiatrist of De Evenaar (the Centre for Transcultural Psychiatry of ggz Drenthe, a mental health service in the Provinces Drenthe and Friesland); Mr Jerrol Marten of CoMensha, the Dutch coordination body on the issue of human trafficking; Mr Tin Verstegen, director of Nidos; Mr Jan Murk of Nidos; Mr Richard Sondeijker of the Dutch Immigration and Nationalisation Service (ind); Mr Gert Buist of emm, the Expertise Center on Human Smuggling and Human Trafficking (of the Dutch Police and the Royal Netherlands Marechaussee of the Ministry of Defence); and Mr Otto Schuurman of the Jade Zorggroep (manager, operating in the Netherlands the Safe House for victims of trafficking for the Central Agency for the Reception of Asylum Seekers, coa). Declaration on the Rights of the Child, ‘the Declaration of Geneva’ (26 September 1924) Geneva: the League of Nations. Wessels M What are We Learning about Protecting Children in the Community: An Interagency Review of Evidence on Community-based Child Protection Mechanisms (2009).

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• Agencies working with victims of child trafficking have to become more sensitive to the cultural background of the child.59 • When parents are absent, a professional legal representative (a guardian)60 needs to be appointed who will actively fight for the interests of the young person who has been trafficked and who will play a coordinating role (since there will be many agencies and authorities dealing with the case). From the earliest stage possible (but at least before the child has to take a decision whether he or she will report the trafficker to the police), victims of child trafficking should have the right to be assisted by an attorney who has had training in child rights or youth law, refugee law and the crime of human trafficking and can deal with these fields in a professional way.61 • Victims of child trafficking should also have the right to be assisted by a reliable professional translator paid for by the state. • Victims of child trafficking should have the right to treatment for trauma, and if there is a psychiatric mental disorder they should have the right to treatment. • Because of the enormous dangers these minors have been exposed to,62 adequate medical care should be provided. • Victims of child trafficking, like other children, have the right to education, but education for these young victims should be given at a safe location (in order that the traffickers cannot find them) and the education process 59

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Rohlof H, Groen S, Van Dijk R & Starmans R ‘The influence of culture on diagnostics: Analysis of the use of the cultural formulation of diagnosis’ Abstract Book of the 15th World Congress of Psychiatry (2011) 98–9. At the transcultural psychiatric department ‘de Evenaar’ of the mental health services Drenthe (where one third of the minors of the Shelter receives treatment), a ‘cultural interview’ is a standard procedure during the intake process, in addition to a meeting with a (child) psychologist and a psychiatrist. fra: European Union Agency for Fundamental Rights Guardianship for children deprived of parental care: A handbook to reinforce guardianship systems to cater for the specific needs of child victims of trafficking (2014). In the Netherlands, Nidos is an example of good practice. Here, the judge appoints a professional guardian from Nidos (www.nidos.nl). It seems this example is slowly being followed by other countries. In 2015 the Human Trafficking and Exploitation Bill in Northern Ireland, which began as a Private Member’s Bill from Lord Morrow, was given Royal Assent (www.ecpat.org.uk). But to be clear, Northern Ireland has committed in law to guardians for all trafficked and separated children at risk of exploitation; it is in England and Wales where the government has backed off a little (information provided by Cloe Setter of ectat uk in London). Here I thank Ms. Inge Hidding and Ms. Nanette Weteling, both attorneys at law, for assisting in the formulation of this proposed right. Zimmerman A, Yun K, Shvab I et al. The Health Risks and Consequences of Trafficking in Women and adolescents: Findings from a European Study (2003).

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should be adapted to their special needs. The school should not put pictures of trafficked children in a school newspaper or on their website (because this can lead the traffickers to them). • After the victims of child trafficking report the trafficker(s) to the police, the victims should have as a right that the matter will be dealt with in a fast, competent manner by specially trained criminal police investigators and, as far as possible, by the same police officials/investigators. They have to try to keep the number of interviews to a minimum. Risk assessment instruments have to be developed which should be scored before a possible investigation. If the mental health of the child is in danger (especially when there is a risk of suicide, self-mutilation, or the child becoming psychotic), no police investigation should be carried out and a psychologist or psychiatrist should see the child. The risk analysis can also indicate under what conditions an interview by the police can be carried out (by a male investigator, a female investigator, with a guardian present, with a psychologist present, and so on). Such a risk analysis instrument still has to be developed. • A stay of a foreign victim of child trafficking in a country of destination should never be dependent on the (court) case against the trafficker.63 The victim of child trafficking should have the right to settle down and not be subject prematurely to interrogation by the police or hearings by the immigration authorities (and only, as mentioned above, after a proper risk analysis has been made). • This is especially important when the child victim suffers from the consequences of psycho trauma. We should respect that ‘recollections of traumatic experiences with very intense emotions can often be put into words only with the greatest difficulty’.64 While there are young people who have an 63

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In the Netherlands this is unfortunately the case at present. There is a legal procedure for victims of trafficking who report the trafficker(s) to the police. The so-called ‘B8/3 procedure’ applies to victims who report the trafficker(s) to the police and are ready to be witnesses in court against the trafficker(s). Staying is possible in the Netherlands during the criminal proceedings against the trafficker(s). The problem is that victims are often scared and the story they tell the police often too vague to give grounds for prosecuting the trafficker. When the charges against the trafficker(s) are consequently dropped or dismissed, it often leads to the return of the child to his or her country. This procedure is arguably entirely inappropriate to the situation of victims of child trafficking. Their lawyers often do not choose the B8/3 route but request asylum for the child. An interesting study was published in Dutch also dealing with this issue Kok S Kind en mensenhandel in het vreemdelingenrecht (2015). Vermetten E & Op den Velde W ‘Geheugen en trauma’ in Aarts PGH & Visser WD Trauma, diagnostiek en behandeling (2007) 129–40.

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unusually strong ability to remember traumatic experiences, there are also those for whom such experiences have the opposite result: a diminished ability to remember.65 • Child victims should have the right to stay in a Safe House,66 where they are kept safe and protected from the traffickers. If vulnerable victims of trafficking reach the age of majority, they should have the right to continue to stay in the Safe House67 or be assured they can live in a comparably safe situation. Guardians in these cases should be able to keep coordinating the care for the victims (though now in the role of a mentor rather than guardian). • In principle the child’s return to his or her home country must always be on a voluntary basis. In the cases when the young victim of trafficking wants to return to his or her country, he or she should have the right to a safe return. Child welfare workers in the host country and the country or origin should cooperate. A basis for this might be the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children,68 which entered into force on 1 January 2002. In other words, the child can return to the country of origin only if the child will receive the necessary care in the country to which he or she is returned. Also, his or her safety there should be beyond doubt. If he or she has no other option than to return, the child should have the right to be supported (if possible from a time well before the date of return) by a social network in the country of origin, by a fitting education for the return, and/or by financial support.69 A victim of child trafficking should certainly have the right not to return if he or she is at risk of being re-trafficked.

65 66 67

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Vermetten E & Op den Velde W, Op Cit. (note 63). ecpat uk On the safe side: principles for the safe accommodation of child victims of trafficking (2011). Traffickers often send adolescents of 17 years and ten or 11 months to the Netherlands. The potential victims imagine, for instance, that they are going to be a hairdressers, while unbeknownst to them the traffickers plan to ‘fish them up’ when they are 18 years old and make them work as prostitutes. We need more time to get them mentally prepared for what is awaiting them. hcch, Hague Conference on Private International Law Practical Handbook on the operation of the Hague Convention of 19 October 1966 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (2014). See http://www.hcch.net. The International Organisation for Migration (iom) gives to this end financial support.

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8 Conclusion Child trafficking found its place in article 35 of the crc. However, 25 years after the Convention was adopted, the problem of child trafficking is growing rapidly and article 35 shows that the crc is ageing.70 Cheap flights; new recruiting possibilities on the Internet; the scarcity of border controls inhibiting travel in Europe; the many ‘push’ factors in countries of origin; the enormous profits traffickers can earn;71 the presence, on the one hand, of an array of organisations nationally and internationally that have trafficking in their mandates and, on the other, the lack of enough real inter-agency cooperation; the difficulty of convicting traffickers on the basis of vague stories by the child victims, who often still live in fear – all these factors have made child trafficking one of the most serious challenges in the area of child protection and the children’s rights field. That more resources are not allocated to addressing it defies belief, considering that this bears upon what is probably ‘the most vulnerable group of children’.72 The level of international coordination (for instance by unodc) is very distressing. Moreover, this (dark) corner of the children’s rights field is not yet well researched and much is still terra incognita on the children’s rights map. Rossi observes that the problem of building knowledge of, and doing research on, trafficking begins with the fact that it is hidden and, as a result, responses to trafficking are based on fairly weak data.73 A possible starting-point in the fight against the child-trafficking phenomenon is to strengthen the rights of the victims: the trafficked children. It is hoped the Committee on the Rights of the Child can be persuaded to develop a new General Comment that deals with article 35. It is also suggested, in conclusion, that the Committee dedicate a Day of General Discussion to the rights of victims of child trafficking, which could be one forum among others to discuss how to proceed – and to do so in the spirit of ‘all hands on deck!’ 70 71

72 73

Veerman PE ‘The ageing of the un Convention on the Rights of the Child’ in Freeman M The Future of Children’s Rights (2014) 16–49. Smith KT, Martin HM & Smith LM ‘Human trafficking: A global multi-billion dollar criminal industry’ (2014) 4(3) International Journal of Public Law and Policy 293–308. The authors conclude: ‘Human trafficking is a profitable crime industry, generating about $32 billion in revenues annually, which exceeds that of trade in illegal drugs and arms dealing.’ Rigby J ‘Women and children in the global sex trade: Towards more effective policy’ (2005) 48 International Social Work 136–47. Rossi A ‘Building knowledge: Research on child trafficking’ in Zermatten J (ed) Trafics d’enfants: une fatalité? De la Réalité du terrain aux meilleures practiques (2005) 37–45.

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Bibliography Books

Cohen S Folk Devils and Moral Panics: The Creation of the Mods and Rockers (1972) ­London: MacGibbon and Knee. Cohen S States of Denial, Knowing about Atrocities and Suffering (2000) Cambridge: Polity books. Davies D In Plain Sight: The Life and Lies of Jimmy Savile (2014) London: Quercus. Ehrenreich B & Hochschild AR (eds) Global Woman: Nannies, Maids, and Sex Workers in the New Economy (2002) New York: Metropolitan Books. Freeman M A Commentary on the United Nations Convention on the Rights of the Child: Article 3 The Best Interests of the Child (2007) Leiden and Boston: Martinus Nijhoff. Freud A The Ego and the Mechanisms of Defence (originally published in German in 1936, revised edition 1968) London: Hogarth Press. Gallagher A The International Law of Human Trafficking (2010) Cambridge and New York: Cambridge University Press. Office of the United Nations High Commissioner for Human Rights Legislative History of the Convention on the Rights of the Child Vol. 2 (2007) New York and Geneva: United Nations. Scholte JA Globalization: A Critical Introduction 2 ed (2005) Basingstoke: Palgrave Macmillan. Veerman PE The Rights of the Child and the Changing Image of Childhood (1992) ­Dordrecht, Boston and London: Martinus Nijhoff.

Chapters in Books

Dotteridge M ‘Patterns of child trafficking around the world: Challenges in distinguising between trafficked children, child workers and child migrants’ in Zermatten J (ed) Trafics d’Enfance: Une Fatalité? De la Réalité du Terrain aux Meilleures Pratiques (2005) 49–60 Sion: Institut International des Droits de l’Enfant. Rohlof H, Groen S, Van Dijk R & Starmans R (2011) ‘The influence of culture on diagnostics: Analysis of the use of the cultural formulation of diagnosis’ Abstract Book of the 15th World Congress of Psychiatry (2011) 98–9 Buenos Aires. Rossi A ‘Building knowledge: Research on child trafficking’ in Zermatten J (ed) Trafics d’Enfants: Une fatalité? De la Réalité du Terrain aux Meilleures Pratiques (2005) 37–45 Sion: Institut international des droits de l’enfant / Institut universitaire Kurt Bösch. Veerman PE ‘The ageing of the UN Convention on the Rights of the Child’ in Freeman M The Future of Children’s Rights (2014) 16–49 Leiden: Brill/Martinus Nijhoff. Vermetten E & Op den Velde W ‘Geheugen en trauma’ in Aarts PGH & Visser WD Trauma, diagnostiek en behandeling (2007) 129–40 Houten: Bohn Stafleu van Loghum publishers.

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Journal Articles

Baarda CS ‘Human trafficking for sexual exploitation from Nigeria into Western Europe: The role of voodoo rituals in the functioning of a criminal network’ (2016) 13(2) European Journal of Criminology 257–73. Blum HP ‘The role of identification in the resolution of trauma: The Anna Freud Memorial Lecture’ (1987) 6(4) Psychoanalytic Quarterly 609–27. Brayley H & Cockbain E ‘British children can be trafficked too: Towards an inclusive  definition of internal child sex trafficking’ (2014) 23(3) Child Abuse Review 171–84. Cree VE, Clapton G & Smith M ‘The presentation of child trafficking in the UK: An old and a new moral panic?’ (2014) 44 British Journal of Social Work 418–33. De Vries I & Dettmeijer-Vermeulen C ‘Extremely wanted: Human trafficking statistics – What to do with the hodgepodge of numbers?’ (2015) 8 Forum on Crime and Society 15–36. Doezema J ‘Loose women or lost women? The re-emergence of the myth of “white slavery” in contemporary discourses of “trafficking in women”’ (2000) 18(1) Gender Issues 23–50. Esser L & Dettmeijer-Vermeulen C ‘Een nieuw beoordelingsschema voor het bewijs van uitbuiting buiten de seksindustrie? Van aardbeien en telefoonabonnementen’ (2015) TREMA (Tijdschrift voor de Rechtelijke Macht) October, 262–7. Hussein RA ‘The existing tensions in the defining of human trafficking at a UK and international level: A critical overview’ (2015) 39(2) International Journal of Comparative and Applied Criminal Justice 129–38. Kunze EI ‘Sex trafficking via the internet: How international agreements address the problem and fail to go far enough’ (2010) 10 J. High Tech. L. 241–89. Reid JA & Jones S ‘Exploited vulnerability: Legal and psychological perspectives on child sex trafficking’ (2011) 6(2) Victims and Offenders: An International Journal on Evidece Based Research, Policy and Practice 207–9. Rigby JL ‘Women and children in the global sex trade: Towards more effective policy’ (2005) 48(2) International Social Work 136–47. Rigby P ‘Separated and trafficked children: The challenges for children protection professionals’ (2011) 20(5) Child Abuse Review 324–40. Smith KT, Martin HM & Smith LM ‘Human trafficking: A global multi-billion dollar criminal industry’ (2014) 4(3) International Journal of Public Law and Policy 293–308. Tyldum G ‘Dependence and human trafficking in the context of transnational marriage’ (2013) 51(4) International Migration 103–15. Valentine S ‘Trafficking of child soldiers: Expanding the United Nations Convention on the Rights of the Child and its optional protocol on the involvement of children in armed conflict’ (2003) 9(1) The New England Journal of International and Comparative Law 109–34.

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Newspaper Articles

BBC News ‘Rotheram child abuse: the background to the scandal’ 5 February 2015, available at http://www.bbc.com/news/uk-england-south-yorkshire-28934963 (accessed 3 February 2016). Gallagher AT ‘The global slavery index is based on flawed data – why does no one say so?’ The Guardian 28 November 2014, available at http://www.theguardian.com/ global-development/poverty-matters/2014/nov/28/global-slavery-index-walk-freehuman-trafficking-anne-gallagher (accessed 3 February 2016). Nguyen K ‘Abused, imprisoned Vietnamese slave away in UK’s cannabis farms’ Reuters 25 February 2015. Philipson A ‘Thousands of child migrants have vanished inside Europe’ The Daily Telegraph 1 February 2016. The Scotsman ‘Orkney abuse scandal victim to sue for lost youth’ 11 September 2006, available at http://www.scotsman.com/news/orkney-abuse-scandal-victim-to-sue -for-lost-youth-1-1139542 (accessed 3 February 2016).

General Comments and Guidelines

UN Committee on the Rights of the Child, General Comment No. 13 (2011) on the right of the child to freedom from all forms of violence, Geneva, CRC/C/GC/13, 18 April 2011. UN Committee on the Rights of the Child, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), Geneva, CRC/C/GC/14, 29 May 2013. UN Committee on the Rights of the Child, General Comment No. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin, CRC/GC/2005/6, 1 September 2005. UNICEF Guidelines for Protection of Child Victims of Trafficking (2006), available at http://www.unicef.org/ceecis/0610-Unicef_Victims_Guidelines_en.pdf (accessed 4 February 2016).

Miscellaneous

ECPAT UK On the safe side: Principles for the safe accommodation of child victims of trafficking (2011) London. European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016, Brussels, COM (2012) 286 final. EUROPOL ‘Intelligence Notification: Child trafficking for exploitation in forced criminal activities and forced begging’ (October 2014) The Hague, Intelligence Notification 16/2014.

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EUROSTAT Trafficking in Human Beings (2013) Luxembourg: Publications Office of the European Union. Forss K Working against Trafficking through the Multilateral System: A Study of Coordination between UN Agencies at Global, Regional and National Levels (2012) Stockholm: Andante AB. FRA: European Union Agency for Fundamental Rights Guardianship for Children Deprived of Parental Care: A Handbook to Reinforce Guardianship Systems to Cater for the Specific Needs of Child Victims of Trafficking (2014) Luxembourg: Office for ­Official Publications of the European Communities. Group of Experts on Action against Trafficking in Human Beings (GRETA Committee), Council of Europe Council Convention Action against Trafficking in Human Beings: Victims Rights, Council of Europe (2013), Strasbourg (leaflet). International Labour Office (ILO)/International Programme on the Elimination of Child Labour (IPEC) Unbearable to the Human Heart: Child Trafficking and Action to Eliminate It (2002) Geneva: ILO. International Labour Organisation (ILO) ILO 2012 global estimates of forced labour (June 2012) Geneva. Martens E, public prosecutor, lecture at the Conference by the IND and KMAR (RNLM): ‘Smuggling of human beings and trafficking of persons: Similarities and differences’ [in Dutch] 28 October 2014, The Hague. Nationaal Rapporteur Mensenhandel en Seksueel Geweld tegen Kinderen Mensenhandel: naar een kindgericht beschermingssysteem voor alleenstaande minderjarige vreemdelingen (2015) The Hague. National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children Trafficking in Human Beings: Visible and Invisible II. Summary of the Quantitative Report 2008–2012 (2014) The Hague: Office of the National Rapporteur. RACE in Europe project Briefing: Trafficking for forced labour in cannabis cultivation (2013) London, available at http://www.ecpat.org.uk. Scholte JA ‘What is Globalization? The Definitional Issue – Again’ CSGR Working ­Paper No. 109/02 December 2002, Centre for the Study of Globalisation and Regionalisation (CSGR), University of Warwick, Coventry. Later published as ‘Defining globalisation’ (2008) 31(11) The World Economy 1471–502. UNODC The Role of ‘Consent’ in the Trafficking of Persons Protocol (2014) Vienna: United Nations (Issue Paper). Walk Free Foundation The 2014 Global Slavery Index (2014). Wessels M What are We Learning about Protecting Children in the Community: An Interagency Review of Evidence on Community-Based Child Protection Mechanisms (2009) London: Save the Children UK. Zimmerman C, Yun K, Shvab I et al. The Health Risks and Consequences of Trafficking in Women and adolescents: Findings from a European Study (2003) London: London School of Hygiene and Tropical Medicine.

Part 3 Frontiers of Children’s Rights Research

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chapter 23

Child Rights Research for 2040: A European Commission Perspective Margaret Tuite1 Abstract Twenty-five years after the adoption of the crc, there is still a relative scarcity of comparative data and research that documents how the rights of the child are effectively implemented across the eu. This chapter provides an overview of eu activities in the area of research and data collection on the rights of the child. It explores critical areas of child rights research and analysis in the eu in the medium term and examines how the eu funds and supports both academic research and research carried out by eu bodies such as the fra. Finally, taking a rights-based approach, the chapter proposes more coordinated approaches in the medium to long term.

1 Introduction Twenty-five years after the adoption of the un Convention on the Rights of the Child (crc), there is still a relative scarcity of comparative data and research that documents how the rights of the child are effectively implemented across the European Union (eu). This chapter provides an overview of eu activities in the area of research and data collection on the rights of the child. Taking a rights-based approach, it explores critical areas of child rights research and analysis in the eu in the medium term and examines how the eu funds and supports both academic research and research carried out by eu bodies, such as the European Union Agency for Fundamental Rights (fra). Finally, the chapter proposes more coordinated approaches in the medium to long term.2 1 The author is the European Commission Coordinator for the Rights of the Child: dg Justice and Consumers (just.C1). The views set out in this article are hers and do not necessarily reflect the official position of the European Union. Neither the European Union Institutions and bodies nor any person acting on their behalf may be held responsible for the use which may be made of the information contained in this article. 2 The author gratefully acknowledges input and comments received from colleagues in the Commission, the fra, scientific researchers, and civil society.

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2 Background The first European Commission communication on rights of the child (2006)3 documents the eu’s increasing engagement with rights of the child, as of the insertion of article 24 in the Charter of Fundamental Rights in 2000.4 Looking at recent eu legislation and policy documents on rights of the child,5 it is evident that time was needed for the crc to gain traction both in eu institutions and eu Member States. It was only when the Treaty on European Union entered into force in December 2009 that the rights of the child were elevated to a Treaty objective (article 3.3: ‘[…] shall promote […] protection of the rights of the child’) and the Charter of Fundamental Rights of the European Union6 became an integral part of eu law. In this context, the European Commission adopted an eu Agenda for the rights of the child in February 2011, reaffirming the strong commitment of all eu institutions and eu Member States to promote, protect and fulfil the rights of the child in all relevant eu policies. The eu Agenda7 (the Commission work programme on rights of the child 2011–2014) highlighted the lack of reliable, comparable and official data to support evidence-based policy-making. Today, with an explicit Treaty objective to promote protection of the rights of the child, it is appropriate to take stock of how eu research contributes to that process and what approaches could be taken in the medium and long term. 3

Overview of eu Activities in Research and Data Collection

While not exhaustive, this section provides insight into recent research that explores how the rights of the child are being upheld. It also includes research on children more generally, as it is important to take stock of what has been done in order to reflect both on where opportunities to take a rights-based approach might have been missed and on how to advance on this in the future. Section 3.2 on the European Commission includes research commissioned via procurement (where copyright belongs to the eu) as well as grant-aided 3 See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2006:0367:FIN:EN:PDF. 4 See http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32000X1218%2801%2 9&from=EN. 5 See http://ec.europa.eu/justice/fundamental-rights/files/eu_acquis_2013_en.pdf. 6 See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF. 7 See http://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX:52011DC0060.

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research through the various programmes (where copyright is retained by the grant beneficiary). eu-commissioned research is generally published at http:// www.bookshop.europa.eu, the eu’s online bookshop. Grant-funded research is generally available on the grant beneficiaries’ websites and possibly on the funding department’s website. The overview includes some recent European Parliament studies and examines research carried out by eu Agencies. This overview does not include statistical work done by Eurostat, pre-legislative impact assessments or conformity/transposition assessments. 3.1 Sex- and Age-Disaggregated Data As borne out by recent studies by the eu, it is not yet a given that data are sex- and age-disaggregated (sadd). In some cases, for example, data on missing children were not disaggregated by sex; similarly, data might not always be gathered by age (year of birth) but according to disparate age groupings that impede comparability as well as the development of appropriate policy responses. Elements of the 2014 Gender-age marker toolkit,8 drawn up for the purposes of humanitarian aid, could possibly be integrated in other eu policy areas to help take due account of gender and age, particularly as the toolkit is also strong on child participation. 3.2 European Commission 3.2.1 Eurobarometer Since 1973 the Commission has monitored the evolution of public opinion in the Member States through Eurobarometer9 polls and surveys. Surveys and studies address major topics concerning European citizenship, with polls conducted among those aged 15 years and older (reflecting industry-wide standards10 and practice). Further to two earlier studies in 2011,11 the Commission published a qualitative Eurobarometer study, Children’s rights, as they see them,12 based on 170 discussion groups with the participation of 1,445 children aged 15 to 17 years in 27 countries.

8 See http://ec.europa.eu/echo/files/policies/sectoral/gender_age_marker_toolkit.pdf. 9 See http://ec.europa.eu/public_opinion/index_en.htm. 10 See http://www.esomar.org/uploads/public/knowledge-and-standards/codes-and-guide lines/ESOMAR_ICC-ESOMAR_Code_English.pdf. 11 See http://ec.europa.eu/public_opinion/flash/fl_235_en.pdf and http://ec.europa.eu/ public_opinion/flash/fl_273_en.pdf. 12 See http://ec.europa.eu/justice/fundamental-rights/files/rights-of-the-child_en.pdf.

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3.2.2

Children in Judicial Proceedings, Child Participation and Missing Children Recognising an absence of comparative data, the European Parliament established a €2m pilot project under which the Commission carried out three data collection exercises in 2012. The first, a study to collect data on missing children in EU27,13 was published in 2013.14 It reported that in 2011 a quarter of a million children were officially reported as missing, identified key gaps in data collection, and made recommendations on the basis of the findings, thereby triggering renewed policy interest in the effectiveness of child protection systems. Further to the eu’s commitment to the promotion and use of the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice15 and the clear objective to improve child-friendly justice in line with the crc, the second and most ambitious study sought to collect data in EU28 on children’s involvement (in all roles, for example, suspect/offender/victim/witness/ party to/subject of proceedings) in criminal, civil and administrative judicial proceedings. For each of the three justice strands, outputs comprise individual Member State or country reports on legislation and policy on children’s involvement as well as an eu Summary of the main findings in the national reports. The main focus of the study was to gather already existing national and international data against a range of indicators drawn up on the basis of the Council of Europe Guidelines and to draw upon, among others, the ohchr framework of human rights indicators16 to demonstrate how the child’s rights are effectively upheld in terms of legislation and policy. The criminal justice results were published in June 2014 and the civil and administrative results in June 2015.17,18 In view of the volume of information gathered, a short policy brief summarising key findings for Member States was be published in 2015.19 13 All eu Member States, except Croatia. 14 See http://bookshop.europa.eu/en/missing-children-in-the-european-union-pbDS 3113627/. 15 See http://www.coe.int/t/dghl/standardsetting/childjustice/News/newpublications _en.asp. 16 See http://www.ohchr.org/EN/Issues/Indicators/Pages/documents.aspx. 17 Criminal justice results published in June 2014 – reports: see http://bookshop.europa.eu/ children-in-criminal-judicial-proceedings; data: www.childreninjudicialproceedings.eu. 18 Reports: http://bookshop.europa.eu/children-in-civil-judicial-proceedings; http://book shop.europa.eu/children-in-administrative-judicial-proceedings; data: www.childrenin judicialproceedings.eu. 19 See http://bookshop.europa.eu/en/children-s-involvement-in-criminal-civil-and-admin istrative-judicial-proceedings-in-the-28-member-states-of-the-eu-pbDS0415479/?Catalog CategoryID=Vhiep2OwweYAAAFOlgAi8_Kp.

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One drawback is that this is a once-off study. In parallel to this study on legislation and policy, and in close cooperation with the Commission, the fra collected data on practice (see the section on fra below); in other words, the two pieces of research are complementary.20 Because article 12 of the crc on the child’s right to be heard (reflected also in article 24 of the eu Charter of Fundamental Rights) is generally recognised as one of the most challenging to implement, the Commission conducted a third study to evaluate legislation, policy and practice on the child’s right to be heard in EU28 and among the eu institutions, which was published in June 2015. Study outputs include individual country reports, examples of good practice, a childled research summary and a resource catalogue.21 The research is useful in pinpointing some of the many gaps relating to the implementation of article 12. 3.2.3 Social Protection Rights and Social Inclusion One of the priority areas set out in the eu Agenda is children in or at risk of poverty and social exclusion. Following on from that, on 20 February 2013 the European Commission adopted a recommendation on ‘Investing in children: breaking the cycle of disadvantage,’22 which took a comprehensive child rights approach to tackling child poverty and promoting child well-being. In 2013, members of the European Network of Independent Experts on Social Inclusion were asked to prepare country reports to assist the Commission and Member States in implementing the recommendation and informing its monitoring, resulting in a 2014 synthesis report, Investing in children: Breaking the cycle of disadvantage.23 The report makes several recommendations, including that the recommendation be integrated (as it was intended) as a key component of the Europe 2020 governance cycle, leading to specific sections on child poverty in the Annual Growth Survey and National Reform Programmes, and that specific Europe 2020 sub-targets should be set on child poverty and social exclusion. Neither the synthesis report nor the country reports address pillar three on the child’s right to participate. In 2014 the Commission published a study on research carried out in the context of the ‘investing in children’ recommendation mentioned above, to 20 See http://fra.europa.eu/en/project/2012/children-and-justice/publications. 21 See http://bookshop.europa.eu/en/evaluation-of-legislation-policy-and-practice-of-child -participation-in-the-european-union-eu--pbDS0514101/. 22 See http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013H0112. 23 EU Synthesis: http://ec.europa.eu/social/main.jsp?catId=89&langId=en&newsId=2061& furtherNews=yes. Individual country profiles and reports: http://europa.eu/epic/countries /index_en.htm.

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investigate if and how conditional cash transfers (ccts) can promote investment in children.24,25 Practical research by way of peer reviews in social protection and social inclusion foster open discussion and mutual learning. They are co-funded by the Programme for Employment and Solidarity (progress)26 (2007–2013), and the new Employment and Social Innovation Programme (EaSI) (2014–2020) will continue peer reviews.27 Peer reviews relevant to rights of the child and child policies28 include a 2014 peer review in Italy on work with marginalised families at risk of having their children taken into care. Learning from previous peer reviews29 is taken into account. The 2014 peer review papers will be published in due course.30 A 2015 peer review in Belgium looks at the effectiveness of local consultation platforms on child poverty (established in May 2014) with a view to sharing the interim study findings with other Member States. To help foster the social inclusion of children, the Commission established the European Platform for Investing in Children (epic) website31 as a platform to share the best of policy-making for children and families and to foster cooperation and mutual learning in the field. epic also participates in seminars and workshops around the eu on strategies for improving outcomes for children and families, and this engagement at Member State level has the potential to make a difference beyond a mere website. The relatively sparse section on the third pillar on the child’s right to participate32 demonstrates that more needs to be done to involve children in all matters that affect them. Furthermore, in 2016 fra will include a focus on child poverty (see below). 24 See http://bookshop.europa.eu/en/study-on-conditional-cash-transfers-and-their -impact-on-children-pbKE0214922/. 25 See http://bookshop.europa.eu/en/study-on-conditional-cash-transfers-and-their -impact-on-children-pbKE0214923/. 26 See http://ec.europa.eu/social/main.jsp?callType=2&catId=327&furtherCalls=yes&langI d=en. 27 See http://ec.europa.eu/social/main.jsp?langId=en&catId=89&newsId=1093. 28 See http://ec.europa.eu/social/main.jsp?year=0&country=0&theme=5&catId=1024&lang Id=en&mode=searchSubmit. 29 01/01/2015 Belgium; 11/12/2014 Italy; 13/11/2012 Norway ; 20/09/2012 Belgium; 06/10/2011 France; 27/05/2010 Hungary; 21/01/2010 Germany; 06/07/2009 United Kingdom. 30 See http://ec.europa.eu/social/main.jsp?catId=1070&langId=en. 31 See http://europa.eu/epic/about/index_en.htm. 32 See http://europa.eu/epic/practices -that-work/recommendation-pillars/ index-pillar-3_en.htm.

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3.2.4 Inclusive Education and Social Inclusion Access to quality and inclusive education is a critically important area for children, reflected in Europe 2020. The eu’s engagement with and focus on education has increased over the years. In 2013 the Commission published a study on educational support for newly arrived migrants.33 A 2014 study on the effective use of early childhood education and care (ecec) in preventing early school-leaving (esl)34 collected evidence on how equitable and high-quality ecec can influence the performance of children in the subsequent stages of education and possibly contribute to the prevention of early school-leaving, allowing major gaps in existing research to be identified and directions for future studies to be provided. 3.2.5 Health Set out below is a small selection of research activities in the health sector (co-funded by the eu Health Programme and other actions on mental health). Under the auspices of a joint action on mental health and well-being, a strand on mental health and schools (2012–2016)35 maps scientific evidence and good practices for effective actions in the field of mental illness prevention and mental health and well-being promotion among children and adolescents in Europe. The project supreme (Suicide Prevention by Internet and Media-Based Mental Health Promotion) (2010–2013)36 focused on the age group 14 to 24 years. Deliverables included a mapping of media-based suicide prevention interventions and a collection of good practice. adocare (2013–2015)37 aims to promote and sustain the creation of adapted and innovative care structures for adolescents with mental health problems, including through research. 33 See http://bookshop.europa.eu/en/study-on-educational-support-for-newly-arrived-mi grant-children-pbNC3112385/; http://bookshop.europa.eu/en/study-on-educational-sup port-for-newly-arrived-migrant-children-pbNC0113130/; http://bookshop.europa.eu/en/ study-on-educational-support-for-newly-arrived-migrant-children-pbNC0113131/. 34 Executive summary: http://bookshop.europa.eu/en/study-on-the-effective-use-of-early -childhood-education-and-care-ecec-in-preventing-early-school-leaving-esl --pbNC0414324/; other deliverables: http://bookshop.europa.eu/en/search/?webform -id=WFSimpleSearch&DefaultButton=findSimple&WFSimpleSearch_NameOrID =ECEC&SearchConditions=&SearchType=1&SortingAttribute=LatestYear-desc&findSim ple.x=0&findSimple.y=0. 35 See http://www.mentalhealthandwellbeing.eu/mental-health-and-schools. 36 See http://supreme-project.org/. 37 See http://www.adocare.eu/project-overview/.

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3.2.6 Asylum and Migration Much of the available eu-level research and information relating to children in migration situations has been gathered by the European Migration Network (emn).38 This included, for instance, the 2010 comprehensive overview of Member State policies and practices relating to unaccompanied children (­European Migration Network, 2010), which informed the 2010 European ­Commission Action Plan on Unaccompanied Minors (2010–2014) and its proposal of a common approach towards unaccompanied or separated non-eu children. The research was carried out in close coordination with fra, which conducted and published39 interview-based research with practitioners and separated children themselves in 10 Member States, which helps to contextualise emn research findings. The emn has updated the 2010 study, including information on unaccompanied children who have not applied for asylum, those in the process of returning to their homeland or whose application for protection was rejected; ageing-out of state care; and next steps in terms of service provision, integration or return. An eu synthesis report was published in May 2015, as well as 2014 national reports and statistics.40,41 Another useful form of emn research relates to ad hoc queries from one Member State to others, such as the 2014 compilations of replies on admission/ residence and guardianship-related provisions for unaccompanied foreign and/or eu children in vulnerable situations42 and on care orders for foreign children of illegally staying parents.43

38 See http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration _network/about/index_en.htm. 39 See http://fra.europa.eu/sites/default/files/fra_uploads/1692-SEPAC-comparative-­report _EN.pdf. 40 See http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration _network/reports/docs/emn-studies/emn_study_policies_practices_and_data_on_unac companied_minors_in_the_eu_member_states_and_norway_synthesis_report_final _eu_2015.pdf. 41 See http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration _network/reports/studies/results/unaccompanied-minors/index_en.htm. 42 See http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration _network/reports/docs/ad-hoc-queries/518_emn_ahq_unaccompanied_foreign_and_or _eu_minors_in_vulnerable_situations_16january2014_(wider_dissemination).pdf. 43 See http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european _migration_network/reports/docs/ad-hoc-queries/miscellaneous/536_emn_ahq_care _orders_17032014_en.pdf.

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In 2014 the emn published an eu synthesis report, The use of detention and alternatives to detention in the context of immigration policies,44 which covered 26 eu Member States as well as Norway and was based on national reports45 addressing immigration detention for children. The CONNECT project46 led by Save the Children Sweden was co-financed by the eu under a European Parliament pilot project for unaccompanied ­minors to contribute to the implementation of the Action Plan on unaccompanied minors. The project identified good practices in the reception, protection  and  integration of unaccompanied children in Europe. Outputs included an eu reference tool which sets out the body of eu law and policy on unaccompanied children, a comparative report on four countries, and five practical tools. In the light of challenges on unaccompanied children, including their going missing from reception centres, a useful example of action research is a European Refugee Fund (2008–2013)47 co-financed project (under the Community actions strand)48 led by nidos in the Netherlands, Reception and living in families for unaccompanied children. Covering the period September 2013 to March 2015, it maps current practices, promotes the reception of unaccompanied children in families (instead of reception centres or institutions), and connects stakeholders. The Commission published a study in 2015 on children as a high-risk group for human trafficking into the eu, within the eu or within one Member State.49 3.2.7 Violence against Children A very small selection of research-focused projects is set out below.

44 See http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration _network/reports/docs/emn-studies/emn_study_detention_alternatives_to_detention _synthesis_report_en.pdf. 45 See http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration _network/reports/studies/results/irregular-migration/index_en.htm. 46 See http://www.connectproject.eu – Reference Document providing a compilation of relevant eu laws and policies on uams: http://www.connectproject.eu/PDF/CONNECT -EU_Reference.pdf. 47 See http://ec.europa.eu/dgs/home-affairs/financing/fundings/migration-asylum -borders/refugee-fund/transnational-actions/index_en.htm. 48 See http://ec.europa.eu/dgs/home-affairs/financing/fundings/migration-asylum -borders/refugee-fund/transnational-actions/docs/grants_awarded_2012_en.pdf. 49 See https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/study_on_children_as _high_risk_groups_of_trafficking_in_human_beings_0.pdf.

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A 2010 feasibility study commissioned under the daphne Programme sought to identify ‘possibilities, opportunities and needs to standardise national legislation on violence against women, violence against children and sexual orientation violence’.50 While the study gave a good overview of national legislation at that time and proposed some useful recommendations, it concluded there was no legal basis to act on violence against women in general. The study results informed the development of the victims’ package51 and action on female genital mutilation. An action research project co-financed by daphne in 2012, can-mds,52 led by the Institute of Child Health (el) and due to end in 2015, seeks to develop a coordinated response to Child Abuse and Neglect (can) via a minimum data set (mds), developed in line with crc Article 19 and gc No 13. Aiming to create a tool for national can monitoring systems to provide comprehensive, reliable and comparable case-based information at national level, the project has potential in terms of making practical tools available. TACTICS,53 a 2012 eu Health Programme-funded project54 led by the European Child Safety Alliance (ecsa), looked at what Member States do to prevent intentional injury to children.55 Covering 28 eu Member States as well as Iceland and Norway, the report includes country profiles and recommendations. After TACTICS, the daphne-funded pieces56 project (2013–15) addresses Member State polices on violence against children, based largely on recommendations in the un World Report on Violence against Children.57 Taking a child rights approach, the project examines six policy areas on violence against children: analysis of existing national strategies; data sources, reporting and follow-up; evidence-based prevention efforts; national child death review committees; and child-focused awareness activities. The daphne-funded stir58 project – Safeguarding teenage intimate relationships: connecting online and offline contexts and risks – seeks to map research, policy and practice, and explore young people’s own experiences of 50 See http://ec.europa.eu/justice/funding/daphne3/daphne_feasibility_study_2010_en.pdf. 51 See http://ec.europa.eu/justice/criminal/victims/index_en.htm. 52 See http://www.can-via-mds.eu/. 53 See http://www.childsafetyeurope.org/reportcards/index.html. 54 See http://ec.europa.eu/health/programme/policy/index_en.htm. 55 Short individual country profiles start at page 47: see http://www.childsafetyeurope.org/ archives/news/2014/info/ciir-report.pdf. 56 See http://www.childsafetyeurope.org/pieces/index.html. 57 See http://www.unicef.org/violencestudy/reports.html. 58 See http://www.bris.ac.uk/sps/research/projects/current/stir/.

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relationship violence and views on prevention. It uses school-based surveys of 4,500 children (aged 14 to 17) and 100 interviews conducted with young people. Results were published in 2015.59 3.2.8 Safer/Better Internet – eu Kids Online One of the best-known pieces of research co-funded by the European Commission, under the eu safer/better internet programme, is eu Kids Online.60 Outputs include a 2011 report based on a survey of 25,000 9 to 16-year-old children and their parents in 25 countries61 and a 2014 report, based on individual and group interviews of children aged 9 to 16 carried out in 2013 in nine eu Members States, entitled The meaning of online problematic situations for children: Results of qualitative cross-cultural investigation in nine European countries.62 eu Kids Online also created a database63 which currently hosts more than 1,500 pieces of European research on children and young people’s online activities, risks and safety. 3.2.9 Children Online – Consumers In the context of the European Consumer Agenda,64 in 2015 the Commission was to publish the results of a study on marketing to children through social media, online games and mobile applications. The study tests and assesses the awareness and understanding by children – and their parents – of marketing techniques directed at them in the online environment. The study serves to evaluate the effectiveness of protective measures already in place and the need for more stringent protective measures. 3.2.10 Children Deprived of their Liberty Co-financed by the Criminal Justice Programme65,66 and led by Defence for Children International (Belgium), the Children Behind Bars action research project67 will provide 14 national reports. It focuses on fostering the ­appropriate 59 See http://stiritup.eu/app-and-resources/. 60 See http://www.eukidsonline.net. 61 See http://eprints.lse.ac.uk/33731. 62 See http://eprints.lse.ac.uk/56972/. 63 See http://www.lse.ac.uk/media@lse/research/EUKidsOnline/DB/home.aspx. 64 See http://ec.europa.eu/consumers/archive/strategy/docs/consumer_agenda_2012 _en.pdf. 65 See http://ec.europa.eu/justice/grants1/programmes-2007-2013/criminal/index_en.htm. 66 See http://ec.europa.eu/justice/newsroom/files/c(2013)_8579_final_annexes.pdf. 67 See http://www.childrensrightsbehindbars.eu/.

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coordination and harmonisation of practices among existing monitoring bodies and key actors (at international, regional and national levels); the provision of common assessment criteria; and efforts to improve the availability of comparable information. The results were to be published in 2015. 3.3 Scientific Research (dg rtd) The eu research and innovation programme aims to achieve the goals of the Europe 2020 Strategy, including through seeking to fund excellent research in a strategic programming approach. The programme’s long-term (2020) objective is to make Europe a better place to live and work by developing and implementing research and innovation policy to improve Europe’s competitiveness, boost its growth, create jobs and tackle the main current and future societal challenges. Aside from the scale and reach of the research budget (the 2014–2020 research budget is in the order of €63bn), it differs from many of the other pieces of research mentioned in this chapter in that it is researcher-led. Work done in this programme is generally conducted over several years by consortia of academic and other researchers, with all that this implies in terms of research standards and ethics. In much of what is described below, we can identify a ‘research thread’ in which one piece of research informs and defines further research. eu public investment in research helps to underpin and support research infrastructure in Europe. The bulk of scientific research by the European Commission is co-financed under the research programmes, which, like other eu financing programmes, run for seven-year periods. This chapter presents a selection of the child-related research carried out under the previous programme and describes the main focus of the current one. While the Seventh Framework Programme (FP7) was managed directly by dg rtd of the European Commission, as of 2015 most of Horizon 2020 will be managed by the eu Research Executive Agency (rea).68 3.3.1

Seventh Framework Programme69 (FP7) (2007–2013) Social Inclusion, Social Innovation, Education and Care, Families and Society A compilation70 of FP7 and FP6 social innovation project synopses is available. In 2015 the Commission published a policy review on research on poverty and

68 See http://ec.europa.eu/rea/index_en.htm. 69 See http://ec.europa.eu/research/fp7/index_en.cfm. 70 See http://ec.europa.eu/research/social- sciences/pdf/project_synopses/ ssh-projects-fp7-5-6-social-innovation_en.pdf#view=fit&pagemode=none.

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social inclusion innovation and investment, covering 10 projects, including research on child poverty,71 taking a life-course perspective.72 FAMILYPLATFORM73 involves 12 organisations from research institutes and family associations working together to elaborate a European research agenda on the family. Among the outputs are proposed research agendas on the family such as this one,74 which includes some focus on the child’s perspective. Aside from the projects mentioned below, a March 2014 policy brief on families and societies, entitled Solomonic choices: Parental separation, child wellbeing and family policies in Europe,75 looks at changing family configurations, trends in parental separations and divorce law, the impact of divorce on children and parenting strategies after divorce. It provides evidence of the acute need for effective child protection systems to meet the challenges of evolving societies. Other notable projects include: • Measuring Youth Well-Being (MYWeB),76 which began in March 2014, assesses the feasibility of a European longitudinal study for children and young people through prioritising both scientific and policy imperatives: see the policy brief based on their consultation of experts to date.77 From a child rights perspective, it is essential to have longitudinal cohort research Europe-wide, and this is one of the most important pieces of research currently under way. • cope78 focuses on combating poverty through integrated and participatory modes of multilevel governance, with some interesting reports that include a focus on children.79 • The wilco project80,81 examines participative welfare innovations, including in the area of child-care arrangements.

71 FP6 also covered social inclusion, for example, see http://www.ub.edu/includ-ed. 72 See https://ec.europa.eu/research/social-sciences/pdf/policy_reviews/kina26814enc .pdf#view=fit&pagemode=none. 73 See http://www.familyplatform.eu/. 74 See https://eldorado.tu-dortmund.de/bitstream/2003/27709/1/Family%20Platform%20 Brochure%202%20-%20PDFA.pdf. 75 See http://ec.europa.eu/research/social-sciences/pdf/policy_brief_families-and-societies .pdf. 76 See http://fp7-myweb.eu/. 77 See http://fp7-myweb.eu/briefings/policy-summary. 78 See http://cope-research.eu/. 79 See http://cope-research.eu/wp-content/uploads/2014/10/COPE_Deliverable-4.7.pdf. 80 See http://www.wilcoproject.eu/. 81 See http://www.wilcoproject.eu/book/chapters/about-this-book/.

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• The care project82 (2014–2016) aims to develop an evidence-based and culture-sensitive European framework of developmental goals, quality assessment, curriculum approaches and policy measures for improving the quality and effectiveness of care. The aim is to promote health equity through policy and practice in early childhood development, employment and working conditions, and income and social protection. • Reducing Early School Leaving in the eu (RESL.eu)83 produced a comparative analysis of policies on early school-leaving in nine eu Member States. • MigRom84 investigates the experiences, motivations, and ambitions of Roma migrants from Romania who have recently moved to four Member States. • Young People from a Public Care Background: Pathways to Education in Europe (YiPPEE)85 is the first comparative study of young people who have been in state care as children; the study also covers their post-compulsory education. • Ethnic Differences in Education and Diverging Prospects for Urban Youth in an Enlarged Europe (edumigrom)86 investigates the impact of education policies on Roma and second-generation migrant youth in nine Member States. • Making Persons with Disabilities Full Citizens (discit) focuses on ­community-living over the life course and includes a focus on children with disabilities.87 • Social Platform on Innovative Social Services (innoserv)88 suggested research agendas for future research activities, selected innovative projects89 and produced some visual examples, for example, on coaching for parents90 or flexible child-care for single-parent families.91 • Social Innovation: Driving Force of Social Change (si-drive)92 aims to extend knowledge about social innovation relating to education, health and social care, and poverty. 82 See http://ecec-care.org/. 83 See http://ec.europa.eu/research/social-sciences/pdf/policies_early_school_leaving .pdf#view=fit&pagemode=none. 84 See http://romani.humanities.manchester.ac.uk/migrom/. 85 See http://tcru.ioe.ac.uk/yippee/. 86 See http://www.edumigrom.eu/. 87 See http://ec.europa.eu/research/social-sciences/pdf/policy_briefs/discit-pb3_0914 .pdf#view=fit&pagemode=none. 88 See http:// www.inno-serv.eu/. 89 See http://www.inno-serv.eu/projects-list-table. 90 See http://www.inno-serv.eu/content/empowering-parents-eltern-ag. 91 See http://www.inno-serv.eu/content/flexible-child-care-single-parent-families -%E2%80%93-mom%E2%80%99artre. 92 See http://www.si-drive.eu/?page_id=2.

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Health Notable projects relating to health include: • chicos (Developing a Child Cohort Research Strategy for Europe)93 develops an integrated European strategy aimed at improving child health. Research revealed that there are more than 70 birth cohorts across Europe. The study dealt with more than half a million mothers, fathers and children at repeated points over long time periods. chicos proposed recommendations94 for the next 10 to 15 years. • The Research Inventory for Child Health in Europe (riche),95 96 makes knowledge on child health accessible through an extensive, searchable database. The project also provided justified guidance for investments in research over the next decade. • coping conducted research on the children of parents in prison,97 which included an examination of the impact this situation has on the child’s health. • The FP7-funded DRIVERS project (2012–2015)98 aims to promote health equity through policy and practice in early childhood development, ­employment and working conditions, and income and social protection. Recommendations address broad principles, including universality of access, addressing different levels of disadvantage, respecting context and building evidence. 93 See http://www.chicosproject.eu/. 94 See http://www.chicosproject.eu/assets/178/CHICOS_brochure_20130712.pdf. 95 See http://www.childhealthresearch.eu/. 96 See http://www.childhealthresearch.eu/Members/jkilroe/report-on-the-roadmaps -for-the-future-of-european-child-health-research/view. 97 See http://ec.europa.eu/research/health/public-health/health-promotion-and-disease -prevention/projects/coping_en.html. 98 See http://health-gradient.eu/ – http://health-gradient.eu/about/publications/ DRIVERS builds on who and eu reports on social determinants for health: 2008 who Commission on Social Determinants of Health – final report http://www.who.int/social_determi nants/thecommission/finalreport/en/; 2014 Review of social determinants and the health divide in the who European Region. Final report http://www.euro.who.int/en/health -topics/health-policy/health-2020-the-european-policy-for-health-and-well-being/the -evidence/review-of-social-determinants-and-the-health-divide-in-the-who-european -region.-final-report; description of the evidence base for who’s Health 2020 strategy in Europe is also given on the who European website http://www.euro.who.int/en/health -topics/health-policy/health-2020-the-european-policy-for-health-and-well-being/the -evidence; Health inequalities in the eu – Final report of a consortium http://ec.europa .eu/health/social_determinants/docs/healthinequalitiesineu_2013_en.pdf; dg sanco st aff paper based on this report is at http://ec.europa.eu/health/social_determinants/docs/ report_healthinequalities_swd_2013_328_en.pdf.

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3.3.2 Horizon 2020 (2014–2020) Horizon 2020 is the biggest-ever eu research and innovation programme, with nearly €80 billion funding available over seven years. It is divided into sections, one of which comprises seven societal challenges.99 The challenge of most direct relevance to the rights of the child is Societal Challenge 6, ‘Europe in a changing world: inclusive, reflective and innovative societies’,100 with a global budget of approximately €1.3bn. Annual work programmes are drawn up, as was the case for 2014–15,101 where the focus is on young people, not children. The 2016–17 work programme was published in late 2015.102 For Societal Challenge 1, ‘Health, demographic change and well-being’,103 the focus is firmly placed on the latter half of the life course, arguably missing an opportunity to focus on preventative health systems and health care that adequately include children. One Horizon 2020 project with particular relevance to children’s rights is Models of Child Health Appraised (mocha) (June 2014–December 2018). It seeks to compare and appraise existing national models of primary care for children in 30 European countries, with the study encompassing aspects such as equity of care and incorporating a rights-based approach.104 3.4 eu Agencies 3.4.1 European Union Fundamental Rights Agency (fra) fra has worked on the rights of the child since its establishment in 2007. It began by developing rights-based indicators105 to measure respect for and promotion of children’s rights in the eu, and then collected data and published research across a broad range of child rights themes. Its ‘second round’ of research in 2015 serves to measure progress and identify trends, making fra results even more valuable in a medium- to long-term perspective. In 2015 fra 99 See http://ec.europa.eu/programmes/horizon2020/en/h2020-sections. 100 See http://ec.europa.eu/research/social-sciences/index.cfm?lg=en&pg=funding; http://ec.europa.eu/programmes/horizon2020/en/h2020-section/europe-changing -world-inclusive-innovative-and-reflective-societies. 101 See http://ec.europa.eu/research/participants/portal/doc/call/h2020/common/ 1617616-part_13_societies_v2.0_en.pdf. 102 See http://ec.europa.eu/research/participants/data/ref/h2020/wp/2016_2017/main/ h2020-wp1617-societies_en.pdf. 103 See http://ec.europa.eu/programmes/horizon2020/en/h2020-section/health -demographic-change-and-wellbeing. 104 See http://cordis.europa.eu/project/rcn/193278_en.html. 105 See http://fra.europa.eu/en/publication/2012/developing-indicators-protection-respect -and-promotion-rights-child-european-union.

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published extensively on the rights of the child, including on children and ­justice, children with disabilities and the mapping of national child protection systems. As of 2016 fra will collect data on child well-being. Involving Children in Research In the context of its work relating to children and justice (see below), fra looked at the rules in all Member States governing the involvement of children in research and has put the results online for the benefit of the research community.106 Asylum and Migration In 2010 fra published a comparative report107 describing the experiences and views of 336 separated, asylum-seeking children and those of 302 adults responsible for their care across 12 eu Member States. The research, linked to the emn work mentioned above, examines children’s living conditions as well as legal issues and procedures. In 2010, fra published a report on the detention of third-country nationals in return procedures,108 including a section on the detention of children. A 2014 joint fra/European Court of Human Rights handbook on European law relating to asylum, borders and immigration109 also refers to issues concerning children and families. In 2014, fra published a paper on the criminalisation of migrants in an irregular situation and of persons engaging with them.110 It dealt with the punishments used for irregular entry or stay, in particular with regard to custodial penalties, as well as the risks incurred by those who help irregular migrants. The annex to the paper111 summarises the laws and sanctions in place in eu Member States. Following on from the report on separated children, in 2014 fra and the European Commission published Guardianship for children d­ eprived of parental care – a handbook to reinforce guardianship systems to cater for the specific needs 106 See http://fra.europa.eu/en/news/2014/looking-how-eu-member-states-involve-children -research. 107 See http://fra.europa.eu/en/publication/2012/separated-asylum-seeking-children-euro pean-union-member-states. 108 See http://fra.europa.eu/sites/default/files/fra_uploads/1306-FRA-report-detention-­dece mber-2010_EN.pdf. 109 See http://fra.europa.eu/sites/default/files/handbook-law-asylum-migration-borders-2nd ed_en.pdf. 110 See http://fra.europa.eu/en/publication/2014/criminalisation-migrants-irregular-situa tion-and-persons-engaging-them. 111 See http://fra.europa.eu/sites/default/files/fra-2014-criminalisation-of-migrants-annex _en.pdf.

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of child victims of trafficking.112 A report on guardianship systems followed in 2015.113 A 2015 follow-up study considers whether and how national child protection authorities are involved prior to deciding whether to return or transfer an unaccompanied child who is an eu national to his/her country of nationality.114 In November 2014, fra published two reports on the fundamental rights situation at the eu’s airport and land borders,115 including sections on children. Roma The fra Roma Pilot Survey,116 117 was carried out in 2011 among respondents aged 16 and older to document the situation on the ground. The study collected data on the socioeconomic condition, experiences of discrimination and rights awareness of Roma in 11 Member States. The survey mapped the socio-demographic characteristics of all household members, including children, describing the living conditions of 61,271 persons. Along with an interactive data explorer,118 in 2013 fra published country thematic reports119 for all Member States on the situation of Roma. In 2014 fra published three thematic reports120 focusing on education, poverty and employment, and gender, highlighting widespread Roma exclusion and underlining the need for targeted ­social inclusion measures for Roma. lgbt fra research121 over five years found that lesbian, gay, bisexual, and transgender (lgbt) persons face discrimination across all areas of social and economic 112 See http://fra.europa.eu/en/publication/2014/guardianship-children-deprived-parental -care-handbook-reinforce-guardianship. 113 See http://fra.europa.eu/en/publication/2015/guardianship-children-deprived-parental -care. 114 See http://fra.europa.eu/en/project/2015/return-transfer-children-risk-who-are-eu-­natio nals. 115 See http://fra.europa.eu/en/news/2014/fra-presents-new-migration-reports-european-pa rliament. 116 See http://fra.europa.eu/en/publication/2012/situation-roma-11-eu-member-states-­surv ey-results-glance. 117 See http://fra.europa.eu/en/theme/roma. 118 See http://fra.europa.eu/en/publications-and-resources/data-and-maps/survey-data-exp lorer-results-2011-roma-survey. 119 See http://fra.europa.eu/en/country-data/2013/country-thematic-studies-situation-roma. 120 See http://fra.europa.eu/en/news/2014/education-employment-and-gender-roma-­survey -results-focus. 121 See http://fra.europa.eu/en/theme/lgbt.

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life, are vulnerable to verbal and physical attacks, and remain largely invisible out of fear of negative consequences. In 2012, some 93,000 lgbt people responded to an eu-wide survey. Although the survey did not involve children, respondents were also asked about childhood experiences (for example, at school). Thirty-two per cent of respondents aged 18 to 24 said they experienced physical or sexual assault due to their sexual orientation in the last five years. The first survey results were published in 2013122 and the main results in 2014.123 In 2014 fra published a separate comparative report, Being trans in the eu, highlighting the problems young transgender people face, particularly in educational settings.124 Violence against Children In 2014 fra published the results of an eu-wide survey on 42,000 women’s experiences of violence, including during childhood. Outputs125 include a technical report on the survey methodology, sample and fieldwork,126 a main-results report127 and an interactive data explorer.128 On average in the eu, 27 per cent of women had experienced some form of physical violence by an adult before the age of 15. In October 2014, fra published the report, Addressing forced marriage in the eu: Legal provisions and promising practices,129 concluding that concerted legal and practical measures were needed by the eu and Member States to combat this phenomenon.130 Children and Justice In parallel with the Commission study on children’s involvement in judicial proceedings mentioned above, fra conducted primary field research in 122 See http://fra.europa.eu/en/publication/2013/eu-lgbt-survey-european-union-lesbian-gay -bisexual-and-transgender-survey-results. 123 Seehttp://fra.europa.eu/en/publication/2014/eu-lgbt-survey-european-union-lesbian-gay -bisexual-and-transgender-survey-main. 124 See http://fra.europa.eu/en/publication/2014/being-trans-eu-comparative-analysis. 125 See http://fra.europa.eu/en/survey/2012/survey-gender-based-violence-against-women. 126 See http://fra.europa.eu/en/publication/2014/vaw-survey-technical-report. 127 See http://fra.europa.eu/en/publication/2014/vaw-survey-main-results. 128 See http://fra.europa.eu/en/publications-and-resources/data-and-maps/violence-against -women-survey. 129 See http://fra.europa.eu/en/publication/2014/addressing-forced-marriage-eu-legal-­provis ions-and-promising-practices. 130 See http://fra.europa.eu/en/news/2014/comprehensive-action-needed-tackle-forced-mar riage.

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10 Member States131 to examine the extent to which the rights promoted in the Guidelines of the Committee of Ministers of the Council of Europe on childfriendly justice132 are respected and fulfilled in practice. fra collected data through interviews with 570 professionals (judges, prosecutors, lawyers, court staff, psychologists, social workers and police) who experienced such proceedings. The evidence they provided shows that we have a long way to go to make justice more child-friendly across the eu. Results were published in May 2015.133 In 2013 and 2014 interviews were conducted with 380 children, with the results due to be published in 2016. Research points to a need for clear, consistent standards and guidelines as well as systematic monitoring of their implementation in practice; it also revealed a number of promising practices.134 Child Protection Systems In 2014, in the context of Commission activities in the area of integrated child protection systems, fra mapped all 28 eu Member States’ child protection systems, examining national legislative and policy framework; authorities responsible; service providers; structures; human and financial resources; procedures in place for children in need of protection and for placement in alternative care; and monitoring and accountability systems. A comparative overview was published in 2015.135 Key findings point to the fragmentation of legal and policy frameworks, a lack of quality standards, and weak monitoring mechanisms. Children with Disabilities In the context of the eu’s monitoring framework of the United Nations Convention on the Rights of Persons with Disabilities (crpd), fra collected and analysed existing evidence on targeted violence and abuse against children with disabilities (including hate crime). In 2015 fra published the results of research examining hostility, including violence, towards children with disabilities across the eu. Analysis shows that there is limited awareness among stakeholders of the degree of hostility and prejudice towards such children, 131 bg, de, ee, es, fi, fr, hr, pl, ro, uk. 132 See http://www.coe.int/t/dghl/standardsetting/childjustice/News/newpublications_en .asp. 133 See http://fra.europa.eu/en/project/2012/children-and-justice/publications. 134 See http://fra.europa.eu/en/publication/2015/child-friendly-justice-perspectives-and-exp eriences-professionals-childrens. 135 See http://fra.europa.eu/en/publications-and-resources/data-and-maps/comparative-da ta/child-protection.

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and that there are substantial gaps in measures for protecting children with disabilities from violence.136 Handbook of European Law on the Rights of the Child In 2015 fra and the Council of Europe, together with the Registry of the European Court of Human Rights, published a handbook on European law relating to the rights of the child, the aim being to assist practitioners at national and European level.137 3.4.2

The European Foundation for the Improvement of Living and Working Conditions (Eurofound) Eurofound138 is a tripartite agency the role of which is to provide knowledge in the area of social and work-related policies for key actors in the field of eu social policy, doing so on the basis of comparative information, research and analysis. In the context of research related to children, the most relevant themes are improving standards of living and promoting social cohesion in the face of economic disparities and social inequalities, improving working conditions, and increasing labour market participation. Apart from that with a focus on young people as of the age of 15, research relevant to children includes:

• a 2011 study on parenting support in Europe;139 • a 2013 report on child care and its effects on the careers of young workers;140 and • a 2014 study on working conditions and training opportunities in the early education and care (ecec) sector. Furthermore, a 2014 study on families in the economic crisis141 describes the changing quality of life across the eu for different types of families with 136 See http://fra.europa.eu/en/publication/2015/violence-children-disabilities-eu. 137 See http://fra.europa.eu/en/publication/2015/handbook-european-law-child-rights. 138 See http://www.eurofound.europa.eu/about. 139 See http://eurofound.europa.eu/publications/report/2013/other/parenting-support-in-eu rope. 140 See http://eurofound.europa.eu/publications/customised-report/2013/social-policies/car ing-for-children-and-dependants-effect-on-careers-of-young-workers-background -paper. 141 See http://eurofound.europa.eu/publications/executive-summary/2014/quality-of-life-so cial-policies/quality-of-life-in-europe-families-in-the-economic-crisis-executive -­summary.

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c­ hildren and compares their living standards and social situation. Potential patterns that may be related to different family policy approaches are identified by looking at differences between four groups of countries, classified on a spectrum from those with the most flexible family policies to those with the most traditional policies. Similarly, in early 2016 Eurofound will publish a study entitled, Families in the economic crisis: Changes in policy measures in the eu. In July 2015 Eurofound published a study on child-care services examining access and inclusion and the impact of continuing professional development and working conditions on child outcomes.142 The first-ever systematic review of ecec working conditions and training opportunities in all Member States was published in February 2015.143 Eurofound conducts a four-yearly European Quality of Life Survey regarding both the objective circumstances of people’s lives and how they feel about those circumstances and their lives in general. It also looks at subjective topics, such as people’s levels of happiness and life satisfaction, and how they perceive the quality of their societies. Over time, it has become possible to track key trends in the quality of people’s lives. While the interviews are conducted with people aged 18 and older, there may be scope for the 2016 survey to include further questions on child-care services, a topic already addressed in the previous survey. 3.4.3 European Institute for Gender Equality (eige) In 2013 eige published a report144 on female genital mutilation (fgm) in EU28 and, at the time of writing, was conducting a risk-assessment study on fgm. 3.4.4 European Asylum Support Office (easo) In December 2013 easo published a report on age-assessment practices in ­Europe145 in order to provide practical support to Member States. 142 See http://www.eurofound.europa.eu/publications/report/2015/social-policies/early-chi ldhood-care-accessibility-and-quality-of-services. 143 See http://www.eurofound.europa.eu/publications/report/2015/working-conditions-­soc ial-policies/early-childhood-care-working-conditions-training-and-quality-of-­services-a -systematic-review. 144 See http://eige.europa.eu/content/document/female-genital-mutilation-in-the-europe an-union-and-croatia-report. 145 See http://easo.europa.eu/wp-content/uploads/EASO-Age-assessment-practice-in-Euro pe.pdf.

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3.4.5 European Centre for Disease Prevention and Control (ecdc)146 The Centre’s mission is to identify, assess and communicate current and emerging threats to human health posed by infectious diseases. The Centre collects and disseminates certain data relevant to children’s health; in this regard, for instance, it maintains a database on vaccine schedules.147 3.4.6 European Parliament A 2013 study on constitutive pillars for quality ecec148 highlighted the need for policy-makers for the youngest children to work together with those for older groups of children; see also the 2014 study on ecec as a means to prevent early school-leaving (above). A 2013 study149 presents comparative analysis on 18 Member States’ policies for children with disabilities.150 A 2014 study on child soldiers and eu policy on children and armed conflict151 takes stock of the state-of-the-art in academia, policy and practice, and includes recommendations and policy options for the eu, clustered around issues of complexity, comprehensiveness and coherence. 4

Taking Stock in 2015 of Progress and Key Gaps in Research

While the studies and research listed in this chapter are all concerned with children, few of them follow or reflect a child rights-based approach. 4.1 What is Child Rights-based Research? Child-rights based research has as an end-goal the further realisation of the rights of the child. It is grounded – preferably explicitly – in the crc and the 146 See http://ecdc.europa.eu/en/Pages/home.aspx. 147 See http://vaccine-schedule.ecdc.europa.eu/Pages/Scheduler.aspx; http://www.ecdc.eu ropa.eu/en/healthtopics/measles/pages/index.aspx; http://www.eurosurveillance.org/ ViewArticle.aspx?ArticleId=20780. 148 See http://bookshop.europa.eu/en/quality-in-early-childhood-education-and-care-pbBA 0213204/. 149 See http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/474416/IPOL-LIBE _ET(2013)474416_EN.pdf. 150 Country reports (and other ep studies relevant to rights of the child) are available here: http://www.europarl.europa.eu/thinktank/en/search.html?word=child. 151 See http://bookshop.europa.eu/en/child-soldiers-and-the-eu-policy-on-children-and-ar med-conflict-pbQA0414275/.

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General Comments of the un Committee on the Rights of the Child. The rights of the child can and should underpin research on children where, especially in the geographically diverse eu region, the rights of the child can serve as a unifying standard in which to ground research. Child rights-based research involves children in research about them, both as a means to empower children and produce better research results. Our child participation study above shows how far we have yet to go for this win-win approach to become a reality. Action research that takes a child rights-based approach enhances the capacity of duty-bearers to realise the rights of the child by intent and design rather than pure chance. Research which is crc-compliant involves all stakeholders. 4.2 Taking Stock of Gaps in 2015 It is evident that we have missed opportunities, for example when research considers children only up to a certain age but not 18 years. Missed opportunities are also apparent, for instance, in research on families which primarily addresses parents and deals only marginally with the rights of the child. Child rights-based research has been, and is being, carried out by the fra in certain eu grant-aided projects and recent dg Justice and Consumers research based on that dg’s horizontal remit for rights of the child. However, it should become a cross-cutting principle at eu level. 5

Critical Areas of Child Rights Research and Analysis in the Medium Term

Because research reflecting on how the rights of the child are upheld is generally thin on the ground, critical areas of research in the medium term should follow a four-pronged approach entailing: • collective efforts to improve data collection and ensure that the rights of the child underpin any piece of research on children, including concerted efforts to involve children themselves, in accordance with strict ethical guidelines; • increased efforts to test interventions and determine what works; • a continued and consistent focus on children in vulnerable situations; and • mapping existing research against the crc. 6

Proposals for Coordinated Approaches in the Medium to Long Term

This chapter does not purport to give a complete overview of eu research on children (noting also the limited focus to date on rights of the child), but does

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give insight into its breadth and scope. The detective work involved in drafting this chapter demonstrated the need for a rights-based approach and for coordination to be improved in the medium to long term. As such, the author’s proposals are as follows: 6.1 1.

2.

3.

4.

5.

Principles for eu Research: A Rights-based Approach eu research on children, who make up about 20 per cent (100 million) of the eu population, should have an overarching aim to further the realisation of the rights of the child and to improve outcomes for children in line with the crc. eu child rights-based research should be an integral part of any future strategy on the rights of the child. This point is, it is submitted, is crucial if progress is to be made. Embedding a research chapter or statement in an overarching strategic document would be essential for conveying a political message and research-policy decision about ensuring a child rightsbased approach to research at an institutional rather than departmental level. A child rights approach would help to strengthen the research and enable the right research questions to be formulated; enable appropriate connections and links to be made; contribute to the realisation of the rights of the child set out in the crc; and, ultimately, achieve better outcomes for children. As mentioned, some of the research listed above reveals missed opportunities for adopting a children’s rights perspective and enriching project implementation and results. eu research should illuminate an eu research map linking research with rights. We need to identify gaps and measure progress, always with an end-goal of further realisation of the rights of the child. In the area of justice, we now have some insights into realisation of rights of the child across EU28: one of the main findings would be that very little is being done to measure progress against indicators, especially outcome indicators, meaning the impact or outcomes for children themselves. The research we have done helps to better identify research gaps as well as gaps in respect of the rights of the child. One objective should be to improve the volume of qualitative data on the realisation of the rights of the child, article by article, and actual outcomes for children, including on services they receive and specialised resources available for them. In this context it is important to note that the eu would more naturally carry out research where it has competence or could otherwise act to support Member States. Children should be involved in research about children, both as a means to empower children in line with the crc and to improve the research

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results. In general, research on children tends to be weak in reflecting the views and opinions of children themselves, and efforts to embed child participation in research should have high priority. Our June 2015 study on child participation highlights how much of a challenge child participation or even taking a children’s perspective still is. This is also reflected more generally in eu research, and reveals the need for guidance or models that could help to see progress being made. eu research should help to promote a better geographical spread and tackle the information deficit. In terms of the geographical coverage of eu studies, research on children tends to be more frequent in some countries than others (English-speaking countries inside and outside the eu, as well as Sweden, France and the Netherlands). eu research on children must apply an equity lens, with a focus on ­children in vulnerable situations and those who are harder to reach. Broad consensus on some indicators, for example in the area of well-­ being, could be useful for reviews of vulnerability, exclusion, poverty and so on. eu research on children should involve all stakeholders and promote multidisciplinary research teams. This would serve to combine a range of perspectives, expertise and experience – academics and practitioners, civil society and government – possibly through greater recourse to robust advisory panels. Coordination and Cooperation The eu should promote dialogue and reflection on research needs and results. Open dialogue and reflection on research needs, methods and research would be of benefit, and perhaps the European Forum on rights of the child or similar could provide a space for this. The eu should seek to enhance coordination and cooperation in the area of child rights-based research. There are several current challenges. Policy may be designed and implemented on the basis of short-term p ­ olitical priorities without taking account of research and analysis already done. Without appropriate dissemination, research may be needlessly repeated. Policy-makers and practitioners need to acknowledge the need to engage with the research community on a continuous basis, participate in research design and implementation, take stock of previous research and findings, seek to apply the findings, provide feedback and acknowledgement to researchers on why or how research has or has not been used, and keep abreast of research methods and ­opportunities, evidence types

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and limitations. Researchers who do not engage with policy-makers and practitioners may produce research that is considered irrelevant or that misses key issues. Researchers need to be aware of challenges faced by practitioners. The research, policy and practice communities are different. Each has their own objectives, networks, working methods and priorities, culture, terminologies, assumptions, and understandings of what constitutes evidence. The three communities need to engage mutually, to the benefit of all and with none trumping or being subservient to the others. Such engagement can only improve the quality of research, the evidence base, and policy design and implementation. Arguably, Horizon 2020 tries to be challenge-based and is the point where policy and research should come together. It may be worth reflecting on whether mechanisms are in place to ensure this is effective and that policy is amply supported by the best independent research, even if children are not explicitly prioritised among the Horizon 2020 challenges. Suggestions made to the author on how to foster engagement include the creation/ funding of permanent structures or networks, or the facilitation of job shadowing. Pending the adoption of more robust solutions, awareness of the need for mutual engagement and collective efforts to engage could start a process to ensure that by 2040 coordination and cooperation on eu research on rights of the child is the norm. 6.3 1.

2.

Visibility and Accessibility of Research Research plans, opportunities and results must be better disseminated. It is unlikely that any one person or entity was aware of all the eu research described in this chapter. Dissemination of research programmes, funding opportunities, research results and oversight of how results are actually used must be given high priority, thereby enlarging the ‘research community’ to the benefit of all concerned and ultimately improving outcomes for children. Research needs to be visible and accessible. This chapter highlights some attempts to do that: for example, the riche database in the area of health, or the eu Kids Online database. fra by its nature centralises a fair amount of research on children, epic aims to centralise on social inclusion, and the eu Bookshop seeks to centralise official eu publications. Given the links from one area to another (for instance, DRIVERS in the health sector has important findings on ecec), the feasibility of having one or more clearinghouse, platform, open access repository or portal to make research visible and accessible should be considered in view of the

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need both for coordination and cooperation, as mentioned above, and to facilitate big data analytical techniques. A rights-based framework could act as a form of meta-description for all data on children, underpinning key rights with knowledge and evidence for levels of implementation as well as cataloguing the principal challenges. Research Partnership Considerations Partnerships should be assessed on their capacity to address – taking a child rights-based approach – research challenges, including design, engagement and follow-up. In the light of the needs and the principles outlined above (on geographical scope, equity, engagement and so on), it is worth assessing the type of partners needed, including ngos, government agencies and practitioners. What Kind of Research? Longitudinal research on children is essential. The MYWeb project mentioned above is of considerable importance. As longitudinal research is resource-intensive, we should also make collective efforts to ensure a good spread of meta-reviews and studies of the research evidence base that likewise examine trends over time. Participatory research is essential. Research on children tends to be weak in reflecting the views and opinions of children themselves. Efforts to embed child participation principles in research should have very high priority, and our 2015 study indicates that more guidance is needed in order for progress to be made. More qualitative research is essential.

This chapter shows that different forms of research are valuable and can be complementary, from smaller action research projects and once-off surveys to longitudinal studies. Given the potential for eu(−funded) research to facilitate policy and outcome breakthroughs that further the realisation of the rights of the child, discussions on the topic with a range of actors would be welcome.

chapter 24

A Future of Mess, Confusion and Complexity? Linking Children’s Rights and Knowledge Management in a Critical Research Agenda beyond 25 years of the Convention on the Rights of the Child Sara Lembrechts Abstract This chapter uses the momentum of 25 years of the crc to address two interrelated dilemmas at the heart of the current children’s rights debate: (1) the inherent complexity of children’s rights, which militates against a shared understanding of social problems and their solutions, and (2) the fragmentation of knowledge, which prevents better outcomes in a society where we are ‘information rich and time poor’. To that end, the chapter initiates a dialogue between two research fields that have so far only seldom been connected – children’s rights and knowledge management (km). The chapter gives some insights into how our knowledge on children’s rights, and the mechanisms at play around it, could become better equipped to address the mess, confusion and complexity of our present reality. It shows how different knowledge actors in the field of children’s rights could benefit from know-how in the field of km, while at the same time offer innovative approaches to km on how to give children a meaningful role in such processes As such, the chapter hopes to launch an openended discussion on the challenges and opportunities of connecting both paradigms, as well as to offer a refreshing perspective on conventional ways of understanding children’s rights.

1 Introduction 1.1 Setting the Scene The twenty-fifth anniversary of the Convention on the Rights of the Child (crc) provided an ideal opportunity for researchers, policy-makers and practitioners to take stock of where we stand with children’s rights. What can we learn from the past quarter century that makes us push the boundaries of today towards an innovative future with more social justice and human dignity

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for children? Why have efforts to further the realisation of children’s human rights often been fragmented and ineffective, despite the great progress being made in theory and practice? The chapter uses this momentum to address two interrelated dilemmas at the heart of the children’s rights debate: (1) the inherent complexity of children’s rights, which militates against a shared understanding of social problems and their solutions, and (2) the fragmentation of knowledge, which prevents better outcomes in a society where we are ‘information rich and time poor’.1 To critically address these challenges, the chapter will initiate a dialogue between two research fields that have so far seldom been connected – children’s rights and knowledge management (km). Whereas km is understood as the multidisciplinary approach to achieving social objectives by making the best use of knowledge,2 children’s rights are defined as fundamental claims for the realisation of the social objectives of justice and human dignity for children.3 The chapter builds on materials and insights that were gathered from activities of the Flemish Children’s Rights Knowledge Centre (in Dutch, Kenniscentrum Kinderrechten vzw, abbreviated as KeKi). Operational since 2010, KeKi aims to gather, make available, disseminate, stimulate and increase knowledge on children’s rights. Usually, this knowledge is generated by national and international academic research4 and is intended for researchers from multiple academic disciplines, policy-makers and practitioners working on matters concerning youth and children’s rights. As a non-profit organisation, financially supported by the Flemish Government and substantively backed up by a multidisciplinary, inter-university platform of researchers in Belgium, KeKi occupies a unique position at the intersection of these three domains of research, policy and practice. Moreover, due to its growing role as an independent knowledge actor, on the one hand, and a bridge, broker and knowledge

1 Head B ‘From knowledge transfer to knowledge sharing?’ in Bammer G, Michaux A & Sanson A (eds) Bridging the ‘Know-Do’ Gap: Knowledge Brokering to Improve Child Wellbeing (2010) 109. 2 Cf. Girard J Knowledge Management (km) Definitions (2015), available at http://www .­johngirard.net/km (accessed 13 January 2015). 3 Cf. Reynaert D, Desmet E, Lembrechts S & Vandenhole W ‘Introduction: a critical approach to children’s rights’ in Vandenhole W, Desmet E, Reynaert D & Lembrechts S (eds) Routledge International Handbook of Children’s Rights Studies (2015). 4 Increasingly, however, the use of knowledge stemming from non-academic sources is gaining ground as well (see, for example, the first edition of Research on Stage at http://www.keki.be/ research-stage).

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co-creator between research, policy and practice, on the other,5 KeKi’s knowhow is considered a useful point of reference. 1.2 Methodology and Limitations The bulk of results presented below are the product of a multidisciplinary desktop study in which children’s rights, knowledge management and possible synergies between the two were subjected to a critical literature review. In addition, over a period of two years (2012–2014), KeKi held formal and informal6 expert consultations with stakeholders from a wide range of children’s rights institutions in Flanders, so as to be able to complement the theoretical insights with qualitative data.7 In particular, KeKi organised and moderated three focus group discussions, each with a mixed group of six to eight representatives from children’s rights research (n = 8), policy (n = 5) and practice (n = 9) in November and December 2013. To guarantee equal access for participants, the first focus group (F1) took place in Brussels, the second (F2) in Ghent and the third (F3) in Antwerp. Out of 22 participants, one was professionally active in the Netherlands, while the others travelled from Antwerp, Brussels, Ghent and Leuven (Belgium). Participants received a personal invitation based on their membership of KeKi’s Advisory Board and/or on their previous involvement with other KeKi activities.8 The aim of the focus groups was to offer an open forum to brainstorm the way in which knowledge on children’s rights is researched, obtained and shared among professionals in different working environments. In all three discussions, which each lasted about two hours, participants reflected on the needs (gaps), wishes (bridges) and good practices in translating knowledge between various actors, as well as on how we can, through continuous dialogue, look 5 This role was formally strengthened and reaffirmed when KeKi entered its second beleidsperiode (policy period) in January 2014. 6 Previous drafts of this study were discussed at the conference Children and Young People Active in Scientific Research of the Dutch-Flemish Platform for Child Participation in Research (Leiden, 4 April 2013), with KeKi’s Advisory Board (Brussels, 24 April 2013), at KeKi’s seminar Mind the Bridge: the Children’s Rights Database as a bridge between research, policy and practice (Brussels, 6 June 2013) and at the conference 25 Years crc (Leiden, 18–19 November 2014). The latter two presentations can be consulted at http://www.keki.be. 7 As KeKi is a learning organisation, all collected input has served – and continues to do so – as food for thought for an ongoing project of fine-tuning KeKi’s ‘bridging’ expertise. 8 Including, but not limited to, members of the test group of the Children’s Rights Database (Kinderrechtendatabank), editors of the scientific board of the Youth & Children’s Rights Journal (tjk), addressees of KeKi’s policy advice, and participants of KeKi’s training programmes.

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for new solutions and strategies when co-creating knowledge to address complex social problems. The discussions were transcribed and analysed using a Grounded Theory approach.9 References to the different discussions are made in parentheses, referring to one or more sessions (F1, F2 or F3) and indicating the timeslot (for example, 15:44–17:00) where the information can be found in the corresponding transcription.10 The possibility of involving children in the research process was closely examined but not pursued. Although there was awareness that obtaining knowledge on children’s life worlds without the active participation of children runs the risk of being incomplete,11 the predominantly theoretical perspective taken in this chapter did not lend itself to involving children.12 Time and resources were insufficient to develop the necessary expertise and create the preconditions to guarantee that participation would be meaningful, genuine and effective.13 This does not mean, however, that the chapter is not reflexive about such issues as the (im)balances of power, agency and voice of children in matters affecting them; on the contrary, they have been incorporated at various points in what follows. 1.3 Overview The dialogue between children’s rights and knowledge management is explored in two research questions: (1) How could the children’s rights field learn from km so as to become better equipped to deal with the complexity inherent in the realisation of children’s rights in young people’s daily lives? (2) Conversely, how should these models of km be adapted to work specifically in a children’s rights context? To answer the questions, Section two introduces the km notion of ‘complex problems’ to open new perspectives on what it means for stakeholders from research, policy and practice to work towards realising 9 10 11

12

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Glaser BG & Strauss AL The Discovery of Grounded Theory: Strategies for Qualitative R ­ esearch (1967). Transcriptions (in Dutch), a list of participants and further details about the focus groups can be requested from the author. Dedding C, Jurrius K, Moonen X & Rutjes L (eds) Kinderen en jongeren actief in wetenschappelijk onderzoek. Ethiek, methoden en resultaten van onderzoek met en door jeugd (2013) 14; see also F3, 1:24:36–1:26:39. This conclusion was reached during an informal consultation with experts from Kind & Samenleving (April 2013). See also Percy-Smith B & Thomas N (eds) A Handbook of Children and Young People’s Participation: Perspectives from Theory and Practice (2009) 3. Hart R Children’s Participation: From Tokenism to Citizenship (1992) 9. All three focus groups confirmed the widespread concern that often time and resources are lacking to include young people’s experiences.

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children’s rights. Section three analyses the potential and challenges of three km strategies for children’s rights professionals, namely, knowledge sharing, knowledge brokering and knowledge co-creation. Finally, the discussion in Section four expands on what lessons children’s rights can teach to km in terms of the participation and social agency of children. 2

Defining Children’s Rights as a Complex Problem

Despite the great expectations and unprecedented opportunities that came with the global adoption of the crc, children’s rights researchers, policy-makers and practitioners face a wide range of issues that remain extremely difficult to solve. Eradicating all forms of violence against children and realising the rights of children from poor families, of children without parental care, working children, children in conflict with the law or any other children and young people who find themselves in marginalised or subordinate positions in society, confront us with mess, confusion and complexity. Since much has been written and said elsewhere about the urgency of these issues, the goal of this chapter is not to address them substantively. Rather, it will be argued that taking a fresh perspective through the lens of knowledge management may encourage children’s rights professionals to think outside the box of our conventional paradigms, inspiring us to be self-critical and look for innovative approaches in problem-solving. In particular, a km perspective invites us to consider that a common denominator to the abovementioned problems related to children’s rights is their unstructured and complex nature. Such ‘complex problems’ entail multiple challenges.14 One challenge lies in the fact these problems act on several systemic levels. Responsibility is placed with a variety of actors, which often leads to ambiguity as to who is responsible for what.15 In addition, complex problems fall back neither on a consensus about the problem definition, nor on the most suitable direction for a solution. Often, complex problems also contain a dimension of power and cause disagreement on how practical interventions can be effectively implemented. 14

15

Head R ‘From knowledge transfer to knowledge sharing?’ in Bammer G, Michaux A & Sanson A (eds) Bridging the ‘Know-Do’ Gap: Knowledge Brokering to Improve Child Wellbeing (2010) 110; Bammer G, Michaux A & Sanson A Bridging the ‘Know-Do’ Gap: Knowledge Brokering to Improve Child Wellbeing (2010) xix; Regeer BJ & Bunders JFG Kenniscocreatie: samenspel tussen wetenschap & praktijk: Complexe, maatschappelijke vraagstukken transdisciplinair benaderd (2007) 18. See also F2, 46:50–47:44; F3, 41:34–42:09, 43:24–46:00.

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Trying to understand these ‘complex problems’ with the aim of contributing to a possible solution requires non-conventional approaches.16 For one, this holds true on the level of substance, that is, of knowledge about children’s rights. Even though this substantive level is not the primary focus of the chapter, it is useful to briefly situate this debate in the current state of children’s rights studies. In particular, taking the complexity of children’s rights as a starting-point challenges the dominant paradigms that have long governed knowledge building on children’s rights. These paradigms tend to take the crc as a key point of reference, defining children’s rights as a universal, objective and fairly undisputed set of principles, neutral to the context in which children grow up and uncritical about the diversity of meanings children’s rights may have in different contexts.17 In response to that, recent scholarship increasingly points out that the reality of children’s rights is much more complex than a legal instrument and its implementation.18 Taking a contextualised and interdisciplinary approach, these critical theories make explicit how universal understandings of children’s rights are in constant interplay both with the local particularities of children’s lived realities as well as with the interests of other social groups. Secondly, and as the main focus of this chapter, non-conventional approaches are required on the process level as well, that is, in relation to approaches to knowledge on children’s rights. In particular, experience and know-how from practice, data or legislation collected at policy level, and academic research stemming from rigorous methodological and disciplinary choices, have proven to be insufficient to deal with complex problems when used as knowledge in isolation.19 Notably, the essence of what it means to realise children’s rights implies very different things to different people. As such, it is clear that, apart from the role played by substantive complexity, this procedural form of complexity also hinders shared understanding of the social problem of realising children’s rights and, consequently, of the solution that should be envisaged.20 16 17

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Regeer BJ & Bunders JFG Kenniscocreatie: samenspel tussen wetenschap & praktijk: Complexe, maatschappelijke vraagstukken transdisciplinair benaderd (2007) 11. Reynaert D, Desmet E, Lembrechts S & Vandenhole W ‘Introduction: A critical approach to children’s rights’ in Vandenhole W, Desmet E, Reynaert D & Lembrechts S (eds) Routledge International Handbook of Children’s Rights Studies (2015) 2. See, in particular, Liebel (2012) on children’s rights from below; Vandenhole (2012) on ­localising children’s rights; Reynaert (2010) on a life-world approach to children’s rights; and Hanson & Nieuwenhuys (2013) on children’s rights as living rights. Crow MM ‘None dare call it hubris: The limits of knowledge’ (2007); Regeer BJ & Bunders JFG Kenniscocreatie: samenspel tussen wetenschap & praktijk: Complexe, maatschappelijke vraagstukken transdisciplinair benaderd (2007) rmno report. Bammer G, Michaux A & Sanson A Bridging the ‘Know-Do’ Gap: Knowledge Brokering to Improve Child Wellbeing (2010) xix.

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To some extent, children’s rights professionals have already sought a considerable degree of cooperation and connectedness to meet that concern. More and more, non-governmental organisations (ngos) and practitioners join forces in local and global coalitions, while at the same time it is between administrations across geographical borders that much of children’s rights policy-making is given shape. In addition, researchers in this field are increasingly invited not to stick to one field of study only. Cutting across multiple disciplines, children’s rights allow scholars to explore inter-, multi- and transdisciplinary forms of cooperation with colleagues from other backgrounds.21 As such, however, these islands all too often have remained islands, in the sense that bridges are being built within rather than between children’s rights research, policy and practice. Furthermore, strategies, ideas and methods on how to translate different forms of knowledge between research, policy and practice have remained relatively unexplored from a children’s rights perspective, both in terms of theoretical models and concrete examples from practice. In other domains of expertise, though, helpful suggestions have been shared as to how such bridges could be built.22 Whereas most of these initiatives do not touch the issue of children’s rights at all, it is worthwhile to explore to what extent the collected insights from other complex problems can be applied to a children’s rights context. 3

Dealing with Mess, Confusion and Complexity: Lessons from km for Children’s Rights

Knowledge is a moving target.23 Even more so when complex problems are concerned, knowledge is changed, rearranged, updated and contested continuously. Making the best use of knowledge as a resource to achieve further realisation of 21

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Reynaert D, Desmet E, Lembrechts S & Vandenhole W ‘Introduction: A critical approach to children’s rights’ in Vandenhole W, Desmet E, Reynaert D & Lembrechts S (eds) Routledge International Handbook of Children’s Rights Studies (2015) 8–9; Regeer BJ & Bunders JFG Kenniscocreatie: samenspel tussen wetenschap & praktijk: Complexe, maatschappelijke vraagstukken transdisciplinair benaderd (2007) rmno report, 11; F1, 1:22:41–1:23:30, 1:25:17. For example: studies, publications and projects in public health (Comiskey (2012), Waddell (2001)), youth and family services (Bammer et al. (2010), Lewig et al. (2006), Shonkoff (2000), Hermans & Van Regenmortel (2013)); global development (Court & Young (2003, 2004)); information management (Kazi et al. (2007), Earl (2001)); social sciences (Caplan (1979)); and environmental sciences (Magnuszewski et al. (2010), Crow (2007), Regeer & Bunders (2007)). Shonkoff JP ‘Science, policy and practice: Three cultures in search of a shared mission’ (2000) 71(1) Child Development 187.

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children’s rights thus requires a continuous dynamism. This section will explore the way in which three types of knowledge management strategies – knowledge sharing, knowledge brokering and knowledge co-creation – can help children’s rights professionals to deal with that complexity in a dynamic way. 3.1 Building Bridges to Share and Broker Existing Knowledge Strategies of sharing and brokering start from the assumption that ‘barriers to knowledge use’ create ‘gaps’ between different stakeholders, which, when ‘bridged’ with ‘connective tissue’, will contribute to a more relevant knowledge base to underpin present and future children’s rights research, policy and practice.24 In the literature as well as in the focus groups, bridging these gaps and opening a discussion on how to do so, turned out to be a unanimous concern. First, ‘knowledge sharing’ refers to communication and dissemination strategies where experts from research, policy or practice come out with their own knowledge in an attempt to ‘share’ it with their partners in other domains. As such, they change the format of their knowledge to make sure that what they consider to be useful gets to their partners in an adequate format. Figure 24.1 illustrates how one type of knowledge (KN1) is bridged from one actor (left) to another (right), and how this can work in both directions. Concretely, a change in format implies that one finds a bridge in the way knowledge is translated from the ‘language’ of one actor to that of another. A youth worker, for example, may participate in a study on good practices in youth care. By doing so, the practical experience of the youth worker is translated from know-how into data. Researchers, in turn, may then translate these results into policy recommendations for an improved youth policy, or help in the construction of useful tools for other youth workers. KN1

KN1 = bridge

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Figure 24.1 Knowledge sharing between two or more actors

Harper C, Jones N & Tincati C ‘Opportunities and challenges in promoting policy- and practice-relevant knowledge on child rights’ (2010) odi Working Paper 318, 1; Lewig K, Arney F & Scott D ‘Closing the research-policy and research-practice gaps: Ideas for child and family services’ (2006) 74 Family Matters 14; Waddell C ‘So much research evidence, so little dissemination and uptake: Mixing the useful with the pleasing’ (2001) 4(1) Evidence Based Mental Health 4.

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Bridges can be of different design, material and solidity depending on the gap they seek to overcome. This also implies that the ‘gaps’ to be bridged can take multiple forms. Usually, they refer to cross-cutting barriers or ‘cultural differences’25 between knowledge producers in research, policy and practice.26 These include using different forms of evidence and datasets, different needs,27 different missions and agendas,28 different language conventions,29 different considerations of priority, different preferences for structuring and different interpretations of relevance and truth.30 As all focus groups confirm, being responsible for sharing your knowledge is not an easy task. Knowledge producers often face personal or structural hurdles when wanting to make ‘their’ knowledge available – for example, through databases, reporting services, summaries, publications in scientific journals directed to a wide audience, and so forth. Not every individual in research, policy or practice has the enthusiasm and basic networking and entrepreneurial skills necessary for building a successful bridge.31 Furthermore, even if personal qualities and skills are not an issue, a lack of time and financial resources often stands in the way.32 25 26 27

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Shonkoff JP ‘Science, policy and practice: Three cultures in search of a shared mission’ (2000) 71(1) Child Development 181–87. Regeer BJ & Bunders JFG Kenniscocreatie: samenspel tussen wetenschap & praktijk: Complexe, maatschappelijke vraagstukken transdisciplinair benaderd (2007) rmno report, 12. For example, practitioners tend to seek knowledge that leads to action, where the robustness and profundity of the academic world is neither necessary nor desirable (F1, 44: 20–49:40, F2, 25:49–26:42). Researchers are, for example, not always in a position to make recommendations on policy. They may be unable or unwilling to take a political stance that could compromise their position of neutrality, in which they seek the highest possible degree of nuance and objectivity (F1, 50:57–52:29; F2, 24:12–24:44, 45:59–46:50; F3, 43:24–46:00). Jargon, for example, is often a hurdle (F1, 05:12–06:25, 09:22, 1:24:56). Lewig K, Arney F & Scott D ‘Closing the research-policy and research-practice gaps: ideas for child and family services’ (2006) 74 Family Matters 14; Stone D ‘Using knowledge: The dilemmas of “bridging research and policy” (2002) Compare 32(3), 295; Shonkoff JP ‘­Science, policy and practice: Three cultures in search of a shared mission’ (2000) 71(1) Child Development 181–82. Young J ‘Working with complexity: Impact of research on policy and practice’ (2008) 35 Capacity; F2, 1:37:14–1:38:49. Even if researchers seek from the very start to bridge the know-do gap, the outcomes of such processes are usually unpredictable, which makes it hard to obtain funding in the first place (F2, 1:33:23–1:33:40). Furthermore, policy-oriented research in particular looks for fast and preferably numerical results, that is, something a participatory approach will generally not offer (F3).

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An option to partly overcome that challenge is to consider the role of external knowledge brokers.33 Unlike knowledge sharing, knowledge brokering does not depend to such a great extent on stakeholders’ own initiative, but instead involves intermediaries or ‘brokers’ to bridge knowledge between the producers (supply) and the users (demand) of knowledge. A broker identifies knowledge of relevance to a party (KN1) and then transfers that knowledge in an appropriate form from one stakeholder to another (KN2).34 The knowledge gets transformed in a way that makes it more reader-oriented, and thus more relevant and meaningful to other parties (Figure 24.2). Brokers can play a pivotal role in the bridging process, not only in separating chaff (poor standards, irrelevant and low-quality knowledge) from wheat (rigorous, useful and high-quality knowledge), but in overcoming resistance, reframing, matchmaking, engaging, collaborating, capacity-building, moderating, facilitating, interacting and cross-fertilising between research, policy and practice.35 Around the world, one can identify a number of formal or informal networks or specialised agencies that create such forums for knowledge brokering across research, policy and practice. The unicef Office of Research – Innocenti – is one example, and KeKi aims to fulfil this role as well.36 In practice, brokering KN1

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Figure 24.2 Knowledge brokering between two or more actors

Even though the concept of knowledge brokering – which originates in organisation theory and financial market analysis – is not without limits for the social sciences, Marsh (2012) has previously applied it to childhood studies, and Bammer et al. have used it in the context of youth well-being. Marsh J ‘Children as knowledge brokers of playground games and rhymes in the new media age’ (2012) 19(4) Childhood 511; Comiskey C Developing and implementing a model to bridge the gap in policy research and practice (2012); Magnuszewski P, Sodomkova K, Slob A, Muro M, Sendzimir J & Pahl-Wostl C Report on Conceptual Framework for Science-Policy Barriers and Bridges (2010); Sin Chih H ‘The role of intermediaries in getting evidence into policy and practice: Some useful lessons from examining consultancy-client relationships’ (2008) 4(1) Evidence & Policy: A Journal of Research, Debate and Practice 85–103. Magnuszewski P, Sodomkova K, Slob A, Muro M, Sendzimir J & Pahl-Wostl C Report on Conceptual Framework for Science-Policy Barriers and Bridges (2010) 23, 28–30; Kazi AS, Wohlfahrt L & Wolf P (eds) Hands-On Knowledge Co-Creation and Sharing: Practical Methods and Techniques (2007) vii; unicef Progress Report and Proposed Activities for 2006–2008 (2005) 18. In the past, the Norway-based Childwatch International Research Network has played a major brokering role in the field of children’s rights too. However, the network is currently on hold due to a lack of funding for its secretariat.

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takes place on various levels, combined or used in isolation. Brokers, for example, may circulate soft or hard copies of textual documents that summarise knowledge without being simplistic37 or provide a platform where knowledge producers can publish their own materials.38 Alternatively, brokering may entail facilitating personal interaction between stakeholders,39 by building relationships of trust between individuals40 or by providing researchers with a platform to present and discuss their findings on a certain issue with practitioners and policy-makers.41 Online technology has also played a major part in the development and spread of knowledge brokering, for example in providing a children’s rights database42 or online exchange of expertise. These activities go beyond the mere sharing, transmitting or moving of existing knowledge from one actor to another. The knowledge that crossed the broker bridge is not the same on the one side as it was on the other – it is transformed to a new type of knowledge ‘that has been de- and reassembled’, knowledge that has been ‘made more robust, more accountable, more usable’.43 Moreover, this new, brokered knowledge comes to ‘[serve] locally at a given time’,44 herewith responding – at least in part – to the substantive complexity of children’s rights briefly referred to in Section two. 3.2 Co-creating New Knowledge When we talk about complex problems in our above-agreed definition of the term, casual networking and exchange of existing knowledge, be it shared or brokered, is often not sufficient in cases of mess, confusion and complexity. 37 38

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F1, 44:20–50:13, 56:07–56:35; F2, 34:53–35:40, 49:42–50:38, 1:05:10–1:07:02. For example, in the Flemish Tijdschrift voor Jeugd en Kinderrechten (Journal for Youth and Children’s Rights), tjk publishes contributions (mostly in Dutch) that critically reflect on developments in the field of youth and children’s rights, in different disciplines, sectors and contexts. In the section Forumtekst (forum text), the journal gives the floor to practitioners and policy-makers to share non-academic opinionated contributions written in their personal capacity or in the name of an organisation. F1, 1:15:27–1:15:36, 1:33:37–1:33:53; F2, 23:14–24:12, 27:49–28:14; F3, 31:08. F1, 1:40:04–1:40:19; F3, 1:11:12–1:14:05. For example: with Research on Stage, KeKi facilitates the translation of current children’s rights research by giving the floor to young researchers addressing a wide audience of practitioners, policy-makers and other researchers about their findings. For example, in KeKi’s database, researchers can complete a file about their research project and have it put online for other researchers, practitioners and policy-makers to consult (http://www.kekidatabank.be). Meyer M ‘The rise of the knowledge broker’ (2010) 23(1) Science Communication 120; see also Figure 24.3, KN2. Meyer M ‘The rise of the knowledge broker’ (2010) 23(1) Science Communication 123.

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In these cases, km can also go one step further, in that, notably through processes of knowledge co-creation, it helps to establish a form of shared ownership of new strategies and new knowledge on possible solutions to complex problems. When co-creating knowledge, stakeholders from research, policy and practice work together as partners on an equal footing.45 They start from a shared problem statement which is articulated within a specific context of time and space, rather than from a pre-established perception of problems in a policy area, profession, interest group or academic discipline. Different perspectives from each ‘reservoir’ of knowledge (KN1-KN2-KN3-KN4, and so on) are brought together in a holistic and inclusive learning process, where implicit knowledge is made explicit and new knowledge (KN5) is constructed, shared and assessed to make it ‘socially robust’ (Figure 24.3).46 In such processes, the central point is not to connect pre-established perceptions and insights, but to come to as yet unarticulated solutions to complex problems that could otherwise not be found at all. As such, co-created knowledge can fulfil a role that ‘traditional’ knowledge has not yet been able to assume.47 Knowledge co-creation is made operational in various ways. Usually, we speak here of long-term projects that benefit from sustainable funding and are in constant interaction with new research findings, policy needs and practitioners’ feedback. As participants in F3 pointed out, however, it is indeed KN2

KN3

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KN5 Figure 24.3 45

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Knowledge co-creation between multiple actors

As such, knowledge co-creation processes can provide an answer to imbalances of power that are present between different knowledge actors (for example, practitioners often feel like the underdog in relation to policy and research) (F2, 28:14–28:59, 1:16:08–1:17:24). Kassahun A, Scholten H, Beulens AJM ‘Collect and share existing knowledge on collaborative multidisciplinary scientific research processes’ in Kazi AS, Wohlfahrt L & Wolf P (eds) Hands-On Knowledge Co-Creation and Sharing: Practical Methods and Techniques (2007) 351; Regeer BJ & Bunders JFG Kenniscocreatie: samenspel tussen wetenschap & praktijk: Complexe, maatschappelijke vraagstukken transdisciplinair benaderd (2007) 14. Regeer BJ & Bunders JFG Kenniscocreatie: samenspel tussen wetenschap & praktijk: Complexe, maatschappelijke vraagstukken transdisciplinair benaderd (2007) 16.

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hard to find examples in the Flemish children’s rights field where knowledge ­co-creation is actually happening nowadays. One person indicates that she experiences it more as ‘policy, research and practice looking for each other’, as a specific ‘form of interaction’;48 whereas another compares it to taking up each other’s signals from above (legislative level, academia) and from below (level of practice).49 One typical example is the shared praxis of ‘communities of practice’ or cops, informal networks of professionals who share common problems, interests and knowledge about the issues they encounter.50 The cop is used as a forum to communicate, manage and generate knowledge in order to preserve the results of social learning processes.51 cops are directed not only towards the creation of content but the processes and networks in which the participants and the project take part.52 As such, they guarantee a widened and deepened support for creative and innovative developments combining new and existing theory and practice on a certain topic.53 Closely related to cops are the so-called academische werkplaatsen (academic workplaces).54 Whereas such communities have been relatively well established in other fields of research, or abroad (for example, in the Netherlands), it remains a fairly new and unexplored concept in the field of Flemish children’s rights.55 Another way in which the advantages of knowledge co-creation have been recognised, particularly in Flanders, is through the funding of so-called sbo projects (Strategisch Basis Onderzoek or strategic basic research). sbo funds knowledge centres and researchers to develop new ideas and concepts that can form the basis for a new generation of products, processes or services. One 48 49 50

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F3, 4:26–5:23. F3, 11:26–14:31. Harper C, Jones N & Tincati C ‘Opportunities and challenges in promoting policy- and practice-relevant knowledge on child rights’ (2010) odi Working Paper 318, 27; Ramalingam B The Knowledge and Learning Toolkit: A Guide for Development and Humanitarian Organisations (2005) 38. Magnuszewski P, Sodomkova K, Slob A, Muro M, Sendzimir J & Pahl-Wostl C Report on Conceptual Framework for Science-Policy Barriers and Bridges (2010) 5. Regeer BJ & Bunders JFG Kenniscocreatie: samenspel tussen wetenschap & praktijk: Complexe, maatschappelijke vraagstukken transdisciplinair benaderd (2007) 15. Regeer BJ & Bunders JFG Kenniscocreatie: samenspel tussen wetenschap & praktijk: Complexe, maatschappelijke vraagstukken transdisciplinair benaderd (2007) 16. F3, 25:58, 33:45–35:06. Hermans K & Van Regenmortel T Een empowerende academische werkplaats als innovatieve samenwerkingsvorm tussen gebruikers, praktijkwerkers, beleid en wetenschap, plenary lecture at the conference Samen Werken, 7 February 2013.

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of the criteria for a successful application is a significant degree of interaction with as many relevant stakeholders as possible as well as proactive contribution to the process of using the results as they are released. As such, sbo differs substantially from the traditional mechanisms used in the diffusion of academic research results, such as publications, conference papers or participation in networks of academic peer groups.56 What these processes have in common is that they take stakeholders out of their comfort zone; they ask for a considerable effort to combine the best of all ‘knowledges’ into a new, cross-cultural experience directed towards the shared agenda that connects them.57 Such an approach is far from straightforward, especially for policy-makers, since such long-term investments are often perceived as unrealistic.58 Head nicely paraphrases this point: We are often aware that others have important insights to complement our own perspectives, but the transaction costs of access and engagement are often so high that more cooperative approaches to knowledge and action are doomed to failure.59 Processes of knowledge co-creation can thus only take place when adequate support is offered. Such support may come from brokers and adequate financial resources, but so too training researchers in communicating about their research.60 4

A Child Rights-based Approach to km

Having scrutinised a number of the lessons children’s rights can learn from knowledge management, it is important not to overlook asking the reverse question as well – namely, what km can learn from the methodologies and know-how that have been developed in the area of children’s rights over the past 25 years. In particular, as much as complex problems about the ­realisation 56 57

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F3, 37:27–41:03. Hermans K & Van Regenmortel T Een empowerende academische werkplaats als innovatieve samenwerkingsvorm tussen gebruikers, praktijkwerkers, beleid en wetenschap, plenary lecture at the conference Samen Werken, 7 February 2013. F1, 02:43–03:59; F2, 05:28–06:51. Head B ‘From knowledge transfer to knowledge sharing?’ in Bammer G, Michaux A & Sanson A (eds) Bridging the ‘Know-Do’ Gap: Knowledge Brokering to Improve Child Wellbeing (2010) 109. F2, 1:17:24–1:19:11.

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of children’s rights are crucial concerns to researchers, policy-makers and practitioners, first and foremost they concern children themselves. In other words, how should the dialectic processes discussed in Section 3 be operationalised within the specificities of a children’s rights framework, where the overall objective remains the realisation of social justice and human dignity for children and young people? Could we think of something like a children’s rights-based approach (crba)61 to km, where children and young people are involved in building bridges or facilitating knowledge transfers as participants, active agents and experts about their own lives? Exercises in other contexts have shown that adopting a crba to a social process such as education, research or, in this case, knowledge management, means that at every stage of the activity, the realisation of children’s rights is at the heart of the means (how it is done), the goal (why it is done) and the outcome (what is actually done) of the process. Taken together, this means that one can speak of a crba to km when the way knowledge is framed and comes into being, what comes out of it, how it is disseminated and how this is put to use – be it in processes of academic research, policy, practice or a mixture of all – reflects that children are human beings in their own right,62 ‘worthy of respect and dignity, who lead complex and multi-faceted lives’63 and who are, alongside adults, recognised as knowledgeable social actors.64 Whereas ‘an image of children as rights holders does not in itself grant children a real capacity for action, [… the] main challenges to be identified here are for adults to recognise children as co-actors in the dialogue about 61

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Derived from the Office of the High Commissioner for Human Rights’s (ohchr (2003)) definition of Human Rights Based Approaches (hrba), where ‘human rights’ can be substituted with ‘children’s rights’, that is, the human rights of children and young people. Whereas hrbas have most often been analysed in the context of programmes and policies directed towards development and development cooperation (that is, hrba to development), recent studies have enlarged its scope by scrutinising its value as an approach to other activities as well, including programming (for example, by unicef and Save the Children), education (Reynaert (2012), Lohrenscheit (2006)), and research (Lundy & McEvoy (2012), Ennew & Plateau (2004)). Lundy L & McEvoy (Emerson) L ‘Childhood, the United Nations Convention on the Rights of the Child and research: What constitutes a rights-based approach’ in Freeman M (ed) Law and Childhood (2012) 77, 87; KeKi Achtergrondinformatie bij het advies voor het bestek belevingsonderzoek inzake een Kindfocus in de Stadsmonitor (2013) 3. Beazley H, Bessell S, Ennew J & Waterson R ‘How are the human rights of children related to research methodology?’ in Invernizzi A & Williams JM (eds) The Human Rights of Children: From Visions to Implementation (2011) 167. Liebel M (ed) Children’s Rights from Below: Cross-Cultural Perspectives (2012) 20.

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their childhood, rights, choices and interests’.65 Starting from such an image of childhood thus has multiple consequences for the role children and young people can and do play in processes of km. In particular, it challenges conventional knowledge about children’s rights, which is ‘constructed for the most part by adults, for other adults to use in order to make sense of, regulate and promote children’s lives, growth and well-being’.66 Asking for shared ownership of the process between children and all other actors involved67 has a clear influence on traditional power balances as well. Knowledge is power, sharing knowledge is sharing power, and sharing the construction of knowledge implies sharing power relations. In processes of genuine participation,68 the traditional balance of power – according to which the adult is seen as the expert on children, on how to study children, on what to study about children and on how to interpret what children say and do – shifts towards an equilibrium in which children and adults are increasingly recognised as equal partners.69 Provided children and young people get the right support, participation has important benefits. In particular, listening to the views, concerns and experiences of children, and consequently taking these views into serious consideration as an equal source of knowledge alongside other sources,70 is not only essential in ensuring the sustainability and practical usability of that knowledge, but also in creating room for alternative perspectives on the complex 65

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Reynaert D, Desmet E, Lembrechts S & Vandenhole W ‘Introduction: A critical approach to children’s rights’ in Vandenhole W, Desmet E, Reynaert D & Lembrechts S (eds) Routledge International Handbook of Children’s Rights Studies (2015) 416, emphasis added. Woodhead M & Faulkner D ‘Subjects, objects or participants? Dilemmas of psychological research with children’ in Christensen P & James A Research with Children: Perspectives and Practices 2 ed (2008) 13. Ennew J & Plateau DP How to Research the Physical and Emotional Punishment of Children (2004) 15; see also Hermans K & Van Regenmortel T Een empowerende academische werkplaats als innovatieve samenwerkingsvorm tussen gebruikers, praktijkwerkers, beleid en wetenschap, plenary lecture at the conference Samen Werken, 7 February 2013; Lewig K, Arney F & Scott D ‘Closing the research-policy and research-practice gaps: Ideas for child and family services’ (2006) Family Matters 74, 14. Hart R Children’s Participation: From Tokenism to Citizenship (1992). Hermans K & Van Regenmortel T Een empowerende academische werkplaats als innovatieve samenwerkingsvorm tussen gebruikers, praktijkwerkers, beleid en wetenschap, plenary lecture at the conference Samen Werken, 7 February 2013; Woodhead M & Faulkner D ‘Subjects, objects or participants? Dilemmas of psychological research with children’ in Christensen P & James A Research with Children: Perspectives and Practices 2 ed (2008) 13. See also F2, 02:40–03:34; F3, 08:12–11:26, 14:31, 55:06–58:14.

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problem at hand.71 Attributing this active role to children can challenge dominant conceptions of what knowledge about children’s rights actually is and how it can be obtained. Guiding children in this position recognises that their insights and expertise about their own situation are unique, but also that the knowledge base available about children from conventional, non-participatory sources in research, policy and practice, are in essence always partial. In the context of children’s participation in research, some have argued that one cannot speak of participation when children are simply being asked about their life worlds with the sole aim of providing adults with data.72 Consultation by means of interviews, focus groups or surveys is seen as a relatively passive process, which children merely undergo as ‘research units’.73 Whereas it is true that one can hardly speak of real ‘participation’ in the sense of shared ownership of the entire process of knowledge generation,74 in such situations children are nevertheless more than just ‘not yet competent, not yet able to reason, not yet knowledgeable, and in need of constant guidance from adults’.75 Whereas in other contexts they may be vulnerable to social exclusion, here 71

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Hermans K & Van Regenmortel T Een empowerende academische werkplaats als innovatieve samenwerkingsvorm tussen gebruikers, praktijkwerkers, beleid en wetenschap, plenary lecture at the conference Samen Werken, 7 February 2013; Dedding C, Jurrius K, Moonen X, & Rutjes L (eds) Kinderen en jongeren actief in wetenschappelijk onderzoek. Ethiek, me­ thoden en resultaten van onderzoek met en door jeugd (2013); Harper C, Jones N & Tincati C ‘Opportunities and challenges in promoting policy- and practice-relevant knowledge on child rights’ (2010) odi Working Paper 318, 36; F2, 1:10:19. Beazley H, Bessell S, Ennew J & Waterson R ‘How are the human rights of children related to research methodology?’ in Invernizzi A & Williams JM (eds) The Human Rights of Children: From Visions to Implementation (2011) 163. Op de Beeck H, Put J & Lembrechts S Zwaartepunten in het Vlaams Kinderrechtenonderzoek vanaf 2004: Een thematische analyse op basis van de KeKi onderzoeksdatabank (2013) 5. When placed in this position in the knowledge process, children are still expected to rely on adults to take account of their views. These consultations are insufficient to ensure children’s participation rights; thus one cannot speak of ‘active citizenship’ (Van Beers H, Invernizzi A & Milne B Beyond Article 12: Essential Readings in Children’s Participation (2006)). ‘If children are to achieve real benefits in their own lives and their communities, and create a better future, they can only do this by being active citizens, articulating their own values, perspectives, experiences and visions for the future, using these to inform and take action in their own right and, where necessary, contesting with those who have power over their lives’ (Percy-Smith B & Thomas N (eds) A Handbook of Children and Young People’s Participation: Perspectives from Theory and Practice (2009) 3). Qvortrup J ‘Childhood matters: An introduction’ in Qvortrup J, Bardy M, Sgritta G & Wintersberger H (eds) Childhood Matters: Social Theory, Practice and Politics (1994) 4; see also F2, 10:10–13:57.

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they are recognised as ‘experts’,76 ‘knowers’,77 and sources of knowledge who do produce knowledge about their life worlds and their rights.78 Throughout the process of knowledge management, children can play various roles in the search for new solutions to the complex problem of realising their rights. Both on a substantive level (as experts on their own lives) and on a procedural level (as brokers or bridges),79 children should be considered as active meaning-makers. Nevertheless, as the focus groups indicate, methodologies describing how children can meaningfully take up a central role in km strategies have remained underdeveloped so far,80 revealing a clear need for future research in this area. 5 Conclusion Without aiming to be exhaustive, this chapter has given some insights into how our knowledge on children’s rights, and the mechanisms at play around it, could become better equipped to address the mess, confusion and complexity of our present reality. It has shown how different knowledge actors in the field of children’s rights could benefit from know-how in the field of km, while at the same time offer innovative approaches to km on how to give children a meaningful role in such processes. As such, the chapter has aspired to launch an open-ended discussion on the challenges and opportunities of connecting both paradigms, as well as to offer a refreshing perspective on conventional ways of understanding children’s rights. In conclusion, a number of critical reflections are formulated to contribute to a renewed children’s rights agenda beyond the twenty-fifth anniversary of the crc. It is true that most researchers, policy-makers and practitioners in the children’s rights field genuinely care about the relevance of their research 76

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Dedding C, Jurrius K, Moonen X, & Rutjes L (eds) Kinderen en jongeren actief in wetenschappelijk onderzoek. Ethiek, methoden en resultaten van onderzoek met en door jeugd (2013) 21. Dentith AM, Measor L & O’Malley MP ‘The research imagination amid dilemmas of engaging young people in critical participatory work’ (2012) 13(1) Forum: Qualitative Social Research – Sozialforschung Art. 17. Hanson K & Nieuwenhuys O ‘Introduction’ in Hanson K & Nieuwenhuys O (eds) Reconceptualizing Children’s Rights in International Development: Living Rights, Social Justice, Translations (2013) 5. Marsh J ‘Children as knowledge brokers of playground games and rhymes in the new media age’ (2012) 19(4) Childhood 508–22. F2, 02:40–03:34.

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efforts, policies and programming. Equally, they care about turning their results into practice and, in one way or another, achieving the objective of social change’.81 After all, creating, using, sharing and brokering knowledge in the children’s rights field is based on an underlying mission of taking children and young people seriously.82 When done meaningfully, genuinely, actively and effectively,83 participatory processes in particular can enhance the potential for knowledge actors to make a positive difference to children’s lives.84 In order for such an impact to be positive and constructive, however, the quality of different sources of knowledge needs to be critically examined. For example, it is obvious that the quality and reliability of the information and data that lie at the basis of a knowledge-based children’s rights system have a profound impact on how research, policies and programmes fulfilling children’s rights will function.85 Complex problems thus not only require the participation of different stakeholders, but also the consideration of specific methodological choices. Beazley et al. have established that policy-makers and planners tend to over-rely on quantitative data collection, leaving little room for open-ended answers in a way that is more systematic than just single stories or anecdotes.86 Using a variety of methods, they suggest, would increase opportunities to gain deeper insights87 and consequently improve the chances of making a positive impact on children’s lives. 81

82 83

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Lundy L & McEvoy (Emerson) L ‘Childhood, the United Nations Convention on the Rights of the Child and research: What constitutes a rights-based approach’ in Freeman M (ed) Law and Childhood (2012) 78. F2, 1:12:23–1:13:01. Dedding C, Jurrius K, Moonen X, & Rutjes L (eds) Kinderen en jongeren actief in wetenschappelijk onderzoek. Ethiek, methoden en resultaten van onderzoek met en door jeugd (2013) 14; Hart R Children’s Participation: From Tokenism to Citizenship (1992). Lundy L & McEvoy (Emerson) L ‘Childhood, the United Nations Convention on the Rights of the Child and research: What constitutes a rights-based approach’ in Freeman M (ed) Law and Childhood (2012) 91. Ennew J ‘Has research improved the human rights of children? Or have the information needs of the crc improved data about children?’ in Williams J & Invernizzi A (eds) The Human Rights of Children: From Visions to Implementation (2011) 133. Beazley H, Bessell S, Ennew J & Waterson R ‘How are the human rights of children related to research methodology?’ in Invernizzi A & Williams JM (eds) The Human Rights of Children: From Visions to Implementation (2011) 169. Beazley H, Bessell S, Ennew J & Waterson R ‘How are the human rights of children related to research methodology?’ in Invernizzi A & Williams JM (eds) The Human Rights of Children: From Visions to Implementation (2011) 169.

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Following the lead of Campbell and Fiske, and Harper et al.,88 Regeer and Bunders and KeKi89 recommend the use of mixed-method approaches in child-related policy-making, combining quantitative and qualitative research methods as well as children’s experiences, so as to come to knowledge that is ‘robust’ and valuable not only from the perspective of the researcher but also of the policy-maker and practitioner.90 The Committee on the Rights of the Child has also in its General Comment No. 5 (2003, §48) explicitly encouraged states to ‘collaborate with appropriate research institutes and aim to build up a complete picture of progress towards implementation, with qualitative as well as quantitative studies’.91 Finally, as Ennew has argued, ‘[t]he greatest violation of children’s rights is that we do not know enough about their lives, or care enough to find out more’.92 While this chapter has shown that knowledge sharing and co-creation can be part of the solution to bridge children’s rights between research, policy, practice and children themselves, it must be clear that km is not in itself a panacea for the social problems underlying violations of children’s rights.93 Knowledge has clear limits. Rather than being an endpoint, however, these limitations entail a call to action for all stakeholders involved in the process of knowledge affecting the realisation of children’s rights. These limits invite stakeholders to identify and tackle the barriers to children’s rights that they do know and experience, first and foremost within the small-scale complexity of their own island, but also, increasingly, beyond their professional or institutional borders. In addition, it invites them to continue confronting ‘their’ knowledge with that of others, in a dynamic dialogue, cooperatively, 88 89

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Harper C, Jones N & Tincati C ‘Opportunities and challenges in promoting policy- and practice-relevant knowledge on child rights’ (2010) 31–32. Regeer BJ & Bunders JFG Kenniscocreatie: samenspel tussen wetenschap & praktijk: Complexe, maatschappelijke vraagstukken transdisciplinair benaderd (2007) 16; KeKi Achtergrondinformatie bij het advies voor het bestek belevingsonderzoek inzake een Kindfocus in de Stadsmonitor (2013) 11–14. This need was also confirmed during the focus groups, in particular at F2, 28:59–30:14 & F3, 06:23–08:12, 1:28:13–1:29:26, 1:37:15–1:37:58. See also Lundy & McEvoy Lundy L & McEvoy (Emerson) L ‘Childhood, the United Nations Convention on the Rights of the Child and research: What constitutes a rights-based approach’ in Freeman M (ed) Law and Childhood (2012) 75. Ennew J ‘Has research improved the human rights of children? Or have the information needs of the crc improved data about children?’ in Williams J & Invernizzi A (eds) The Human Rights of Children: From Visions to Implementation (2011) 154. Stone D ‘Using knowledge: The dilemmas of “bridging research and policy”’(2002) 32(3) Compare 285.

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and through new or existing ‘bridges’, to form new and adapted ways of understanding, knowing and ultimately solving complex problems relating to the realisation of children’s rights. Bibliography Books

Bammer G, Michaux A & Sanson A Bridging the ‘Know-Do’ Gap: Knowledge Brokering to Improve Child Wellbeing (2010) Canberra: ANU Press. Dedding C, Jurrius K, Moonen X, & Rutjes L (eds) Kinderen en jongeren actief in wetenschappelijk onderzoek. Ethiek, methoden en resultaten van onderzoek met en door jeugd (2013) Houten: Uitgeverij Lannoo Campus. Ennew J & Plateau DP How to Research the Physical and Emotional Punishment of Children (2004) Bangkok: Save the Children. Glaser BG & Strauss AL The Discovery of Grounded Theory: Strategies for Qualitative Research (1967) Chicago: Aldine Publishing Company. Kazi AS, Wohlfahrt L & Wolf P (eds) Hands-On Knowledge Co-Creation and Sharing: Practical Methods and Techniques (2007) Stuttgart: Knowledge Board. Liebel M (ed) Children’s Rights from Below: Cross-Cultural Perspectives (2012) New York: Palgrave. Percy-Smith B & Thomas N (eds) A Handbook of Children and Young People’s Participation: Perspectives from Theory and Practice (2009) New York: Routledge. Van Beers H, Invernizzi A & Milne B Beyond Article 12: Essential Readings in Children’s Participation (2006) Bangkok: Knowing Children.

Chapters in Books

Beazley H, Bessell S, Ennew J & Waterson R ‘How are the human rights of children related to research methodology?’ in Invernizzi A & Williams JM (eds) The Human Rights of Children: From Visions to Implementation (2011) 159–78 Farnham: Ashgate. Ennew J ‘Has research improved the human rights of children? Or have the information needs of the CRC improved data about children?’ in Williams J & Invernizzi A (eds) The Human Rights of Children: From Visions to Implementation (2011) Aldershot: Ashgate. Hanson K & Nieuwenhuys O ‘Introduction’ in Hanson K & Nieuwenhuys O (eds) ­Reconceptualizing Children’s Rights in International Development: Living Rights, Social Justice, Translations (2013) 3–25 Cambridge University Press. Head B ‘From knowledge transfer to knowledge sharing?’ in Bammer G, Michaux A & Sanson A (eds) Bridging the ‘Know-Do’ Gap: Knowledge Brokering to Improve Child Wellbeing (2010) 109–24 Canberra: ANU Press.

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Kassahun A, Scholten H, Beulens AJM ‘Collect and share existing knowledge on collaborative multidisciplinary scientific research processes’ in Kazi AS, Wohlfahrt L & Wolf P (eds) Hands-On Knowledge Co-Creation and Sharing: Practical Methods and Techniques (2007) 347–62 Stuttgart: Knowledge Board. Lundy L & McEvoy (Emerson) L ‘Childhood, the United Nations Convention on the Rights of the Child and research: What constitutes a rights-based approach’ in Freeman M (ed) Law and Childhood (2012) 75–91 Oxford: Oxford University Press. Qvortrup J ‘Childhood matters: an introduction’ in Qvortrup J, Bardy M, Sgritta G & Wintersberger H (eds) Childhood Matters: Social Theory, Practice and Politics (1994) Avebury: Aldershot. Reynaert D, Desmet E, Lembrechts S & Vandenhole W ‘Introduction: a critical approach to children’s rights’ in Vandenhole W, Desmet E, Reynaert D & Lembrechts S (eds) Routledge International Handbook of Children’s Rights Studies (in press) ­London: Routledge. Vandenhole W ‘Localizing the human rights of children’ in Liebel M (ed) Children’s Rights from Below: Cross-cultural Perspectives (2012) 80–93 New York: Palgrave. Woodhead M & Faulkner D ‘Subjects, objects or participants? Dilemmas of psychological research with children’ in Christensen P & James A Research with Children: Perspectives and Practices 2 ed (2008) 10–39 New York: Routledge.

Journal Articles

Campbell DT & Fiske DW ‘Convergent and discriminant validation by the multitrait multimethod matrix’ (1959) 56(2) Psychological Bulletin 81–105. Dentith AM, Measor L & O’Malley MP ‘The research imagination amid dilemmas of engaging young people in critical participatory work’ (2012) 13(1) Forum: Qualitative Social Research – Sozialforschung Art. 17. Lewig K, Arney F & Scott D ‘Closing the research-policy and research-practice gaps: Ideas for child and family services’ (2006) 74 Family Matters 12–19. Lundy L & McEvoy (Emerson) L ‘Children’s rights and research processes: Assisting children to (in)formed views’ (2012) 19(1) Childhood 116–29. Marsh J ‘Children as knowledge brokers of playground games and rhymes in the new media age’ (2012) 19(4) Childhood 508–22. Meyer M ‘The rise of the knowledge broker’ (2010) 23(1) Science Communication 118–27. Reynaert D, Bouverne-De Bie M & Vandevelde S ‘Children, rights and social work: Rethinking children’s rights education’ (2010) 8(1) Social Work and Society: International Online Journal 60–69. Shonkoff JP ‘Science, policy and practice: Three cultures in search of a shared mission’ (2000) 71(1) Child Development 181–87.

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Sin Chih H ‘The role of intermediaries in getting evidence into policy and practice: Some useful lessons from examining consultancy-client relationships’ (2008) 4(1) Evidence & Policy: A Journal of Research, Debate and Practice 85–103. Stone D ‘Using knowledge: The dilemmas of “bridging research and policy”’(2002) 32(3) Compare 285–96. Waddell C ‘So much research evidence, so little dissemination and uptake: Mixing the useful with the pleasing’ (2001) 4(1) Evidence Based Mental Health 3–5. Young J ‘Impact of research on policy and practice’ (2008) Capacity 35 feature series Working with Complexity, available at http://r4d.dfid.gov.uk/PDF/Articles/ YoungImpactofResearch.pdf (accessed 13 January 2016).

Papers

Crow MM ‘None dare call it hubris: The limits of knowledge’ (2007) Perspectives, available at http://step.berkeley.edu/Journal_Club/paper3_092210.pdf (accessed 6 January 2016). Court J & Young J ‘Bridging research and policy: Insights from 50 case studies’ (2003) ODI Working Paper 213, available at http://www.odi.org.uk/sites/odi.org.uk/files/ odi-assets/publications-opinion-files/180.pdf (accessed 6 January 2016). Court J & Young J ‘Bridging research and policy in international development: An analytical and practical framework’ (2004) ODI Briefing Paper, available at http://www .odi.org.uk/sites/odi.org.uk/files/odi-assets/publications-opinion-files/198.pdf ­(accessed 13 January 2016). Harper C, Jones N & Tincati C ‘Opportunities and challenges in promoting policyand practice-relevant knowledge on child rights’ (2010) ODI Working Paper 318, available at http://www.odi.org.uk/sites/odi.org.uk/files/odi-assets/publications -opinion-files/6050.pdf (accessed 6 January 2016). Lohrenscheit C ‘A human rights based approach to education’ (2006) DARE in ACTION – Vision and practice for democracy and human rights education in Europe, available at http://www.dare-network.eu/downloads/DARE_in_action.pdf (accessed 9 August 2016).

Reports

Magnuszewski P, Sodomkova K, Slob A, Muro M, Sendzimir J & Pahl-Wostl C Report on Conceptual Framework for Science-Policy Barriers and Bridges (2010) Final version of deliverable No. 1.1 of the EC FP7 project PSI-connect. EC contract No. 226915, Delft, the Netherlands, available at https://www.researchgate.net/profile/Adriaan_Slob/ publication/230557654_Report_on_conceptual_framework_for_science-policy _barriers_and_bridges/links/0912f50be2b979f545000000.pdf (accessed 17 February 2016).

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Regeer BJ & Bunders JFG Kenniscocreatie: samenspel tussen wetenschap & praktijk: Complexe, maatschappelijke vraagstukken transdisciplinair benaderd (2007) RMNO report, available at http://www.kennisbanksocialeinnovatie.nl/nl/kennis/ kennisbank/kenniscocreatie--samenspel-tussen-wetenschap-en-praktijk/592/ download/kenniscocreatie-rapport-pdf/2731 (accessed 9 August 2016). UNICEF Progress Report and Proposed Activities for 2006–2008 (2005) New York: UNICEF, available at http://www2.unicef.org:60090/about/execboard/files/05-13 _Innocenti.pdf (accessed 13 January 2016).

Miscellaneous

Committee on the Rights of the Child, General Comment No. 5 (2003) on general measures of implementation of the Convention on the Rights of the Child, UN Doc. CRC/GC/2003/5. Comiskey C Developing and implementing a model to bridge the gap in policy research and practice (2012) recordings, available at http://www.psihq.ie/psi-child -­adolescent-psychology (accessed 13 January 2016). Girard J Knowledge Management (KM) Definitions (2015), available at http://www .­johngirard.net/km (accessed 13 January 2015). Hart R Children’s Participation: From Tokenism to Citizenship (1992) Innocenti Research Centre, available at http://www.unicef-irc.org/publications/pdf/childrens _­participation.pdf (accessed 6 January 2016). Hermans K & Van Regenmortel T Een empowerende academische werkplaats als innovatieve samenwerkingsvorm tussen gebruikers, praktijkwerkers, beleid en wetenschap, plenary lecture at the conference Samen Werken, 7 February 2013, Antwerp: Jeugd­ zorg Emmaus. KeKi Achtergrondinformatie bij het advies voor het bestek belevingsonderzoek inzake een Kindfocus in de Stadsmonitor (2013), available at http://www.keki.be/sites/default/ files/Belevingsonderzoek%20stadsmonitor%20-%20Achtergrond.pdf (accessed 13 January 2016). Office of the High Commissioner for Human Rights (OHCHR) The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding Among UN Agencies (2003), available at http://hrbaportal.org/the-human-­rights -based-approach-to-development-cooperation-towards-a-common-understanding -among-un-agencies (accessed 13 January 2016). Op de Beeck H, Put J & Lembrechts S Zwaartepunten in het Vlaams Kinderrechtenonderzoek vanaf 2004: Een thematische analyse op basis van de KeKi onderzoeksdatabank (2013) Gent: Kenniscentrum Kinderrechten vzw. Ramalingam B The Knowledge and Learning Toolkit: A Guide for Development and H ­ umanitarian Organisations (2005), ODI, available at http://www.odi.org.uk/sites/ odi.org.uk/files/odi-assets/publications-opinion-files/188.pdf (accessed 13 January 2016).

chapter 25

Protecting the Locus of Vulnerability: Preliminary Ideas for Guidance on Protecting the Rights of the Child in International Commercial Surrogacy Claire Achmad 1 Abstract This chapter concerns international commercial surrogacy (ics) and its impact on children. ics has developed over the past decade, outstripping law and policy, and is a prime issue for the child rights agenda as we look towards 2040. Its cross-cutting nature involves issues of human rights law and policy, including global migration, social work, bioethics, science and technology. Taking a public international human rights law perspective, this chapter contends that in the absence of international agreement regarding ics, the child should be understood as the primary locus of vulnerability. It highlights the child’s crc rights most at risk, including rights to preserve identity; nationality; grow up in a family environment; not be sold or trafficked; as well as principles of the best interests of the child and non-discrimination. These are illustrated by referring to ics cases. The chapter proposes ideas to serve as the basis of international guidance for protecting the child’s rights in ics situations, harnessing pre-existing international human rights norms and standards. Such guidance presents a valuable tool for protecting the child in the absence of specific international agreement on this ethically and legally vexed issue. Ultimately, this chapter advocates for action to bring children’s rights to the centre of ics.

1 Introduction In the late 1980s, when the un Convention on the Rights of the Child (crc)2 was drafted, the use of assisted reproductive technology (art) as a method of family formation was still in its infancy. The crc drafters were aware of art 1 This chapter is an extended and updated version of a paper presented at the 25 Years crc Conference. The supporting electronic material from that presentation is available at http://law.leiden.edu/organisation/private-law/child-law/25yearscrc/presentations/presentations-25-yers-crc-conference.html (accessed 20 January 2015). 2 unts vol. 1577, 3 entry into force 2 September 1990.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_026

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and beginning to consider the human rights impacts that could be triggered by the conception and birth of children through such means.3 However, they did not give any in-depth attention to the potential child rights issues arising out of the use of art (nor, indeed, to how the crc might apply to such situations). Moreover, at the time, the birth of children through international commercial surrogacy (ics) was not envisaged and hence not on the drafters’ radar. Fast-forward 25 years after the adoption of the crc and ics is increasingly utilised as a method of forming families with children. As greater numbers of children are born through ics, it is becoming apparent that they may well find themselves in a heightened state of vulnerability. A range of their rights under the crc are often placed at risk as a result of the circumstances of their conception and birth, given, for instance, that these circumstances may cut across borders and entail multiple possible parents as well as unknown genetic origins. Certainly, a range of significant human rights challenges exist for the other parties involved in ics arrangements, not least of all the women who are surrogate mothers.4 However, the child’s situation in ics has remained largely under-examined. Only in the recent past has this begun to change, owing to international media scrutiny of some notably contentious cases relating to the rights of the child in ics.5 The twenty-fifth anniversary of the crc’s adoption provides an occasion to consider the situation of children born through ics as a new group whose rights are at risk and, in some cases, breached. It presents a timely opportunity to think about how we can effectively address the child rights challenges arising in the ics context by adopting a future-focused approach to implementing the crc. When contrasted with other contemporary child rights challenges, the situation of children conceived and born through ics might be seen as a less-than-urgent matter. However, ics poses a child rights challenge which is developing and dynamic in nature. Using actual cases as examples, this chapter argues that it is a challenge requiring concerted international attention and action now, before it grows further in scale. As we look ahead to 2040 – the next major commemorative crc milestone – the challenge of protecting the child’s 3 Detrick S, Doek E & Cantwell N The United Nations Convention on the Rights of the Child: A Guide to the Travaux Préparatoires (1992) 296. 4 For example, for useful discussion in the context of India see Vincent C & Aftandilian AD ‘Liberation or exploitation: Commercial surrogacy and the Indian surrogate’ (2013) 36 Suffolk Transnational lr 671; Sama Resource Group for Women and Health Birthing a Market: A Study on Commercial Surrogacy (2012). 5 Most notably the situation of Baby Gammy; see Hawley S ‘Baby Gammy: Surrogate mum says Australian parents saw baby in hospital, disputes claim they didn’t know he existed’ abc News 5 August 2014.

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rights in ics is one we should address sooner rather than later for the benefit of this group of children and their rights. The chapter begins by placing the child’s situation in ics in context, with Section 2 providing background to ics and its development over the past decade as a distinct means by which to have a child. Section 3 highlights those conditions which heighten the risks to the rights of the child in ics, in particular the problems caused by regulatory gaps and conflicts. Focusing on the ways in which the child’s rights are put at risk and sometimes breached in ics situations, Section 4 examines four cases representative of many of the child rights challenges currently experienced by children born through ics. Section 5 links these challenges to specific rights under the crc, highlighting the extent to which the child’s crc rights are jeopardised through ics. Section 6 then offers some preliminary ideas for guidance on protecting the rights of the child in ics situations.6 These ideas are provisional and will be developed further.7 However, they draw heavily on the protection framework offered by the crc, a natural and helpful starting-point for developing such ideas. The chapter concludes in Section 7 by setting out the minimum ideal state to which such guidance is intended to lead regarding the child’s rights in ics. 2

The Rise of ics as a Means to Have a Child

ics has gradually but firmly established itself over the past decade as a new method by which to have a child and build a family. Prior to this, it would have been hard to fathom the possibility – let alone the practical reality – of a child being born, for example, from an embryo comprising the sperm of an anonymous Scandinavian donor and the egg of an anonymous Indian donor, implanted into an Indian surrogate mother and intended for the care of ‘commissioning parents’ living in Australia. ics is made possible through globalisation, scientific and technological advances and cheaper art and surrogacy services offered by new ‘supply states’. Such states include India, Thailand, Mexico, Nepal and Ukraine.8 A further underlying condition contributing to the growth of ics is the attitudinal shift in more developed states towards greater acceptance 6 The author’s current doctoral studies intend proposing fully formulated guidance on protecting the rights of the child in ics; this chapter forms a basis for the eventual guidance. 7 In the course of the author’s current doctoral studies. 8 Some states in the United States of America have been offering ics services for a longer time; however, the states mentioned here have developed as ics supply states over the past decade.

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of alternative methods of family formation and a widened understanding of what ‘family’ means in the twenty-first century.9 ics can be defined as a practice in which a person or persons living in one state pays money to a third party (or parties) to have a child intended to be their child upon birth, a child who is conceived (usually in vitro) and born in another state to a woman acting as a surrogate. Some ics arrangements are governed by a contract, but this is not always the case. The Permanent Bureau of the Hague Conference on Private International Law (Permanent Bureau) provides a simplified description of international surrogacy arrangements as ‘any surrogacy arrangement involving more than one State, either as a result of the differing residences (and usually, nationalities) of the intending/commissioning parents and surrogate mother, or otherwise’.10 However, the financial-transaction aspect of ics is crucial to recognise, as it distinguishes the practice from altruistic surrogacy arrangements. Altruistic surrogacy differs from commercial surrogacy in that no financial transaction occurs, or, if it does, it is limited to reasonable costs associated with the surrogate’s pregnancy. According to Bromfield and Smith Robati, ‘[a] global surrogacy arrangement is a contract pregnancy where the commissioning parents enter into a surrogacy arrangement across international borders, with a woman located in another country; these arrangements are commercial ones, where there is a financial transaction and are almost always gestational surrogacy arrangements’.11 On the basis of anecdotal evidence gleaned from ics case law in demand state jurisdictions, it appears that in practice most international surrogacy arrangements have a commercial element beyond what might be seen as ‘reasonable costs’ associated with a surrogacy in an altruistic, noncommercial sense; it is for this reason that this chapter focuses on ics. It is no exaggeration to say that the world in the twenty-first century is more connected than ever before. It is in this context of connectivity that the growth of medical tourism has taken place. More people than before are crossing ­international borders for medical procedures far from home.12 A number 9 10

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For a comprehensive discussion of new family forms, see Golombok S Modern Families (2015). Permanent Bureau of the Hague Conference on Private International Law Issues Surrounding the Status of Children, Including Issues Arising From International Surrogacy Arrangements (Preliminary Document No. 11 of March 2011 for the attention of the Council of April 2011 on General Affairs and Policy of the Conference) (2011) 3 fn. 1. Bromfield NF & Rotabi KS ‘Global surrogacy, exploitation, human rights and international private law: A pragmatic stance and policy recommendations’ (2014) 1(3) Global Social Welfare 124. For a comprehensive discussion, see Connell J Medical Tourism (2011).

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of ­factors motivate people to engage the services offered through medical tourism, including competitive pricing, on-demand availability13 and, when it comes to ics, taking advantage of the possibility of circumventing restrictive laws and policies of the state in which they reside.14 ics can be seen as a specific subset of this wider growth in medical tourism. DasGupta and Dasgupta describe it as ‘outsourcing childbirth’15 and ‘international gestational outsourcing’.16 Indeed, ics is markedly different from other procedures which can be accessed through medical tourism in that it leads to having a child. Although ics is often discussed in terms indicating there are only two core parties to ics arrangements – the commissioning parents and the surrogate mother – this is far from accurate. In terms of direct parties to an ics arrangement, other people likely to be involved to varying degrees are medical practitioners specialising in surrogacy and ivf/art practices (often operating surrogacy clinics), surrogacy brokers/companies and surrogate mother recruiters. These are the key figures in the ics ‘industry’ who facilitate ics and are likely to benefit financially from commissioning parents under such an arrangement. In most states which have rapidly developed or are continuing to develop the supply of ics services over the past decade, there is no regulatory regime governing the operation of these services.17 13 14

15 16 17

Connell J Medical Tourism (2011) 2–3. This is apparent in the large numbers of commissioning parents undertaking ics in places like the United Kingdom (uk) and Australia, where commercial surrogacy is illegal. Australia and the uk are reported as being two places with the highest numbers of ics users in the world. See bbc ‘Thailand bans commercial surrogacy for foreigners’ bbc News 20 February. DasGupta S & Dasgupta SD Globalization and Transnational Surrogacy in India: Outsourcing Life (2014) viii. DasGupta S & Dasgupta SD Globalization and Transnational Surrogacy in India: Outsourcing Life (2014) viii. This is the case, for example, in India and Nepal; draft legislation (The Assisted Reproductive Technologies (Regulation) Bill (2013)) directed towards introducing a regulatory framework for surrogacy has been pending in India for more than five years. The most recent publicly available version of this Bill is the 2010 version, available at http://icmr .nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (accessed 20 January 2015). However, the contents of the most recent draft Bill have not been publicly disclosed. For discussion see Malhotra A ‘Ending discrimination in surrogacy laws’ The Hindu 3 May 2014. This was also the case in Thailand until recently. However, the National Legislative Assembly of Thailand enacted the Protection for Children Born through Assisted Reproductive Technologies Act on 19 February 2015, available at http://www.senate.go.th/ bill/bk_data/73-3.pdf (accessed 30 June 2015). This Act has the effect of outlawing ics in Thailand.

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Building on this lack of regulation and capitalising on the demand for children conceived and born through ics, the ics industry continues to grow. For example, India (which has emerged as a world leader when it comes to the supply of time- and cost-effective ics services)18 now has a surrogacy industry ballooning in value. While estimates of its value differ, the New Delhi-based Center for Social Research believes the industry is worth more than usd 450 million annually.19 In fact, the overall value may be much higher. Although it is difficult to draw conclusions about the size and value of the international surrogacy industry in India, given these varying estimates, there are now more than a thousand surrogacy clinics throughout the country.20 The availability of surrogacy fuelled by demand from international commissioning parents is also creating the by-product of there being greater in-country demand for surrogacy by Indian nationals in India themselves.21 At the international level, the Hague Conference observed the following in a report published in 2011: The number of international surrogacy arrangements entered into globally is impossible to determine. However, data from five agencies specialising in international surrogacy shows a tremendous growth in the ‘market’: when comparing 2010 to 2006, the figures demonstrate a percentage increase of nearly 1,000% across the agencies. Moreover, generally, the international ‘reach’ of the agencies grew over the five years, with an increase in international intending parents, from an increasing number of States.22 The momentum behind ics is clear, with the demand for it from people in more-developed countries being given impetus by a range of medical, pragmatic and social factors. This growth in ics is set against a backdrop in which there is limited consensus among states about how surrogacy is to be regulated at the d­ omestic 18

19 20 21 22

DasGupta S & Dasgupta SD Globalization and Transnational Surrogacy in India: Outsourcing Life (2014) viii; Fontanella-Kahn A ‘India, the rent-a-womb capital of the world’ Slate 23 August 2010. Center for Social Research Surrogate Motherhood – Ethical or Commercial (2012) 23. Cook M ‘Surrogacy a us$2.3 billion industry in India with 1,000 clinics’ Bioedge 2 June 2012. As highlighted by Anindita Majumdar of Sama during discussion at the International Conference on Surrogacy and Human Rights, itm University, New Delhi, 7 November 2014. Permanent Bureau of the Hague Conference on Private International Law, A Preliminary Report on the Issues Arising from International Surrogacy Arrangements (Preliminary Document No. 10 of March 2012 for the attention of the Council of April 2012 on General Affairs and Policy of the Conference) (2012) 8(6).

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level, let alone the international one.23 For example, even the High Contracting Parties to the Council of Europe show great variation in state approaches to surrogacy,24 which continues to be a highly controversial subject. This was illustrated most recently in Europe by large-scale protests in France against surrogacy;25 the legal issues traversed by the European Court of Human Rights in its first judgments concerning international surrogacy;26 discussions in Ireland on the Children and Family Relationships Bill;27 and the Irish Supreme Court’s decision on determining parentage in surrogacy.28 Indeed, in that decision, Chief Justice Mrs Justice Susan Denham said a legal lacuna existed in relation to the rights of the child in surrogacy situations in Ireland, observing that ‘[a]ny law on surrogacy affects the status and rights of persons, especially children: it creates complex relationships and has a deep social content’.29 3

Creating the Conditions for Risks to the Rights of the Child in ics

As highlighted above, surrogacy is often a complex practice. ics is even more complex, given that it takes place across international borders on a c­ ommercial basis. As a result, ics raises difficult and intersecting moral, ethical and legal 23

24 25 26

27 28 29

Permanent Bureau of the Hague Conference on Private International Law A Preliminary Report on the Issues Arising from International Surrogacy Arrangements (Preliminary Document No. 10 of March 2012 for the attention of the Council of April 2012 on General Affairs and Policy of the Conference) (2012) 9–24. See discussion by the ECtHR in Mennesson v France (App. No. 61592/11), judgment of June 26, 2014 [31]-[33]. Ball S ‘Protestors take to streets over French govt’s “familyphobia”’ France 24 5 October 2014. Mennesson v France (App. No. 61592/11), judgment of June 26, 2014; Labassee v France (App. No. 65941/11), judgment of June 26, 2014. As discussed, for example, by the European Court of Human Rights (ECtHR) in Labassee v France at [55]-[59], surrogacy and its regulation is viewed by the ECtHR as falling within the state’s margin of appreciation in relation to article 8 (right to respect for private and family life) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 ets 5, entry into force 3 September 1953. For further explanation regarding the margin of appreciation and article 8, see Killkelly U The Right to Respect for Private and Family Life: A Guide to the Implementation of Article 8 of the European Convention on Human Rights (2001) 6–8. For example, see Ombudsman for Children, Advice of the Ombudsman for Children on the General Scheme of the Children and Family Relationships Bill 2014 (2014). M.R. & D.R and O.R. & C.R v An tArd Chláraitheoir, Ireland and The Attorney General [2014] iesc 60. M.R. & D.R and O.R. & C.R v An tArd Chláraitheoir, Ireland and The Attorney General [2014] iesc 60, [113].

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questions. At its heart, and from a human rights perspective, it requires us to consider the value we place on human reproduction, the value society places on children and how this is reflected in law.30 In this regard, a fundamental question is the extent to which the practice of ics is consistent with the rights of the child. It is important to remember that ics is premised on commissioning parents’ intentional decisions and actions to create children by utilising scientific/medical intervention. As this chapter makes clear, when children are conceived and born through ics, their rights are at risk in multiple ways. Therefore, it is not possible to argue that ics as it is currently practised is wholly consistent with children’s rights. However, even if ics practices were made more child-friendly to ensure that children’s rights are better protected and upheld, states must wrestle nevertheless with a further fundamental question at the international level. This is the issue of whether ics in fact amounts to the sale of children and hence whether it justifies, and furthermore requires, an internationally agreed ban. Arguably, the prohibition on the sale of children amounts to a jus cogens norm of international law,31 and the definition of sale of children under article 2(a) of the Optional Protocol to the Convention on the Rights of the Child on Sale of Children, Child Prostitution and Child Pornography is framed in wide terms: ‘Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration.’32 Given the transfer of money involved in ics arrangements, the argument that ics amounts to the sale of children is certainly convincing in many respects.33 It is not within the scope of this chapter to undertake in-depth discussion to reach a view on these larger questions underlying ics. However, they are emphasised here to underline their need to be debated and addressed at the international level. Indeed, they must receive attention in order to inform any 30 31

32

33

For interesting discussion see Zelizer VA Pricing the Priceless Child: The Changing Social Value of Children (1994). Ergas Y ‘Thinking “through” human rights: The need for a human rights perspective with respect to the regulation of cross-border reproductive surrogacy’ in Trimmings K & Beaumont P (eds) International Surrogacy Arrangements: Legal Regulation at the International Level (2013) 432–34. Article 2(a) of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, New York, 25 May 2000, entry into force 18 January 2002. See, for example, Tobin J ‘To prohibit or permit: What is the (human) rights response to the practice of international commercial surrogacy?’ (2014) 63(2) International and Comparative Law Quarterly 317–52.

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future multilateral agreement on an international approach to ics. Having acknowledged the convincing nature of the argument that ics amounts to the sale of children, this chapter proceeds on the basis that under the status quo (that is, a context in which there is continued demand and supply of ics in a largely unregulated manner), the rights of individual children require protection. Whilst not impossible, it will be challenging to reach comprehensive international agreement on such a vexed issue. In the meantime, in the absence of an international agreement on what approach should be taken to ics at the fundamental level (be it an international ban, international regulation, or no international intervention), the reality is that children continue to be conceived and born through ics. Consequently, a pragmatic approach is currently needed. Therefore, alongside work concerning the viability of an international agreement on ics, focus must also be placed on understanding why and how the rights of children are at risk in ics, and what steps can be taken to protect their rights at present. Children’s rights are at risk in ics as a result not only of the way in which ics is practised – without a focus on the rights of the child – but of the inherent vulnerability of the child, the existence of regulatory gaps and conflicts between the laws of supply and demand states, and the lack of international law directly governing the practice of ics. Currently, many domestic jurisdictions have no laws explicitly governing ics in these situations. However, such legislative silence does not necessarily mean that such states adopt a permissive attitude to ics in practice. On the contrary, some states with no laws on ics actively exercise restrictive approaches to ics situations involving commissioning parents who are the state’s own nationals or residents. For example, despite the fact that commercial surrogacy is banned in New Zealand (the author’s home country),34 ics is not mentioned or addressed explicitly in law. However, the country exercises a sometimes restrictive practice when dealing with ics situations involving New Zealand citizens or residents. For instance, where one New Zealand commissioning parent is genetically related to a child born through ics, that child may not be allowed to enter New Zealand for some time whilst ad hoc decisions are made with regard to rights of entry into New Zealand.35 Even if the Minister of Immigration makes a discretionary decision to allow the child to enter New Zealand, it is unlikely that the child will be automatically recognised as a New Zealand citizen or as the 34 35

Article 14(3) Human Assisted Reproductive Technology Act 2004. For example, ‘Parents of surrogate born daughter battle to bring her home’ 3 News 28 ­August 2009.

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legal child of his or her commissioning parents.36 In other respects, the approach to ics can be characterised as permissive, given the legislative silence that surrounds it. Some states, however, are taking different approaches to ics. At the opposite end of the spectrum to states with no legislation regarding ics, those such as New South Wales (nsw) in Australia have passed legislation outlawing and criminalising involvement in ics.37 This arose directly in response to nsw citizens and residents embarking on ics arrangements and seeking to bring children back into nsw following birth through ics.38 Similarly, Thailand is the most recent state to have outlawed ics.39 In a further variation on a theme, other states yet are adopting a wholly different approach. These are ones which have emerged as on the ‘supply’ side of ics, due to the fact that they allow ics within their territory, subject to varying degrees of regulation. Here, the stance of some American states, such as California,40 which have longstanding legal approaches to surrogacy (applicable to ics), contrast with India’s approach, which allows ics but has no dedicated national law with clear application to regulating the practice.41 Along with regulatory gaps pertaining to ics, conflicts between national laws are occurring when states apply pre-existing laws to ics situations. This is perhaps most starkly demonstrated in the application of national law and policy governing the ability of children born through ics to acquire nationality and citizenship of their birth state or their commissioning parent’s state. When applied to children conceived and born through ics, the ultimate impact of the application of conflicting domestic nationality laws and policies is that children are in effect born stateless. (This problem is discussed further in Section 4.) Conflicts of laws also arise in relation to the legal parentage of children born through ics. As the Permanent Bureau observes, ‘[D]emographic, societal and 36 37 38

39 40 41

For further explanation see the Department of Internal Affairs, Child Youth and Family and Immigration New Zealand International Surrogacy Information Sheet. Part 2, Surrogacy Act 2010 (New South Wales). For the Act’s legislative history, including discussion in the New South Wales Parliament, see http://www.parliament.nsw.gov.au/prod/parlment/nswbills.nsf/0/71C024816771A264 CA2577C100195683 (accessed 20 January 2015). Protection for Children Born through Assisted Reproductive Technologies Act, 19 ­February 2015. California Family Code, s. 7570 onwards. Draft legislation (The Assisted Reproductive Technologies (Regulation) Bill (2013)) directed towards introducing a regulatory framework for surrogacy has been pending in India for more than five years.

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scientific developments have converged in recent decades to make the question of whom the law should identify as the parents of a child a more complex and challenging question today than ever before.’42 For example, New Zealand law always views the woman who gives birth to the child and her partner (if she has one) as the child’s legal parents at birth.43 This applies in surrogacy situations (and is the view taken in ics situations), on the basis of the principle of mater semper certa est. Rooted in Roman law, it literally means ‘the mother is always certain’. The application of the principle entails that the mother is always known, by virtue of the fact that she is always the person who has given birth. Therefore, applied to the ics context, when a child is born through ics in India to New Zealand commissioning parents, New Zealand law takes the position that, at birth, the child is the legal child of the surrogate mother (and her partner if she has one,44 although this is a rebuttable presumption that can be displaced, for example, by proof of a genetic tie to another male).45 New Zealand continues to take this view in ics situations through the application of its domestic law,46 despite the fact that India registers the child as the legal child of the New Zealand commissioning parents on the child’s Indian birth certificate while withholding Indian nationality, given that he or she was born through ics. It has become apparent in recent years that these somewhat absurd childstatus scenarios – in which children are prevented from having certainty as to their legal status – arise in ics due to persisting gaps in, and conflicts between, domestic legal regimes. Moreover, in many demand states, the legislation which is applied in an effort to regularise ics situations once they come before national courts is outdated and ill-fitting to ics situations.47 As such, ics offers a clear example of social, scientific and technological advances outstripping the development of the law and thus exposing its failure to keep pace. In this regard, the issue of ics, particularly with respect to matters of legal parentage, is on the agenda of the Hague Conference on Private International 42

43 44 45 46 47

Permanent Bureau of the Hague Conference on Private International Law The Desirability and Feasibility of Further Work on the Parentage/Surrogacy Project (Preliminary Document No 3 B of April 2014 for the attention of the Council of April 2014 on General Affairs and Policy of the Conference) (2014) 8, [13]. S. 5 Status of Children Act 1969 (New Zealand). S. 5 Status of Children Act 1969 (New Zealand). S. 7–10 Status of Children Act 1969 (New Zealand). Department of Internal Affairs, Child Youth and Family and Immigration New Zealand International Surrogacy Information Sheet 1. Adoption Act 1955 (New Zealand) provides one such example.

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Law.48 Most recently, in 2015, the Council on General Affairs and Policy of the Hague Conference decided to convene an Experts’ Group to explore the feasibility of advancing work in this area.49 Whilst an international convention governing ics remains a distant prospect, given the current lack of regulation and state consensus around ics, the child’s rights continue to be particularly vulnerable. The cases described below provide a window into ics situations in practice and the specific challenges threatening children’s rights. .

4

Selected Cases Highlighting Challenges to the Rights of the Child in ics

Given the confines of this chapter, the cases presented here serve only to give a flavour of the practical realities confronting children conceived and born through ics. As such, the cases highlight the range of difficulties some children in this group currently face in exercising their rights under international law. 4.1 Mikael and Adrian Volden Mikael and Adrian are twins born in India in 2010 to an Indian surrogate mother as a result of an ics arrangement into which Kari Ann Volden (a sole commissioning parent of Norwegian nationality) entered in Mumbai.50 The twins are the genetic children of an anonymous Scandinavian sperm donor and an anonymous Indian egg donor, the embryo of which was implanted into their Indian surrogate mother.51 Following the twins’ birth, Ms Volden applied for Norwegian passports for the twins to enable them to travel with her to Norway. However, Norway refused to issue passports to the twins, viewing them as the legal children of their surrogate mother and therefore not Norwegian nationals.52 Moreover, commercial surrogacy is not recognised under Norwegian law, and there was no genetic relationship between the twins and 48

49

50 51 52

See Hague Conference on Private International Law ‘The private international law issues surrounding the status of children, including issues arising from international surrogacy arrangements: Mandate’. Hague Conference on Private International Law ‘The private international law issues ­surrounding the status of children, including issues arising from international surrogacy arrangements: Mandate’. Lysvold S et al. ‘Kari Ann Volden får komme hjem’ nrk 16 April 2011. Roy SD ‘Stateless twins live in limbo’ The Times of India 2 February 2011. S. 2 Children Act 1981 (Norway).

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Ms Volden. India, on the other hand, according to its practice in ics situations, did not view the twins as Indian nationals, holding them to be Ms Volden’s legal children.53 An application by Ms Volden to adopt the twins was also rejected by Norway.54 As a result of this conflict of nationality and parentage laws and the positions taken by the two states in relation to ics, the twins were stateless and stranded in India for the first 15 months of their lives.55 They had no legal status in relation to Ms Volden, who was the only person who wanted to be their legal parent. During this time she made a number of appeals to the Norwegian government to let her travel to Norway with the twins and for them to acquire Norwegian nationality. Eventually, the twins were granted entry to Norway as an exception to normal practice, and Ms Volden was later granted legal guardianship of them.56 Anonymous Twin Child Abandoned in India by Australian Commissioning Parents This case came to light as a result of increased international media scrutiny of international surrogacy following the coverage of the more widely publicised situation of Baby Gammy in Thailand.57 Whilst relatively few facts are known (and those that are have been reported through the media), the case bears mentioning as it highlights the real possibility for children born through ics to be abandoned by their commissioning parent(s) in their birth country. Here, twins were born in India to an Indian surrogate mother as a result of a surrogacy arrangement commissioned by Australian parents. However, whilst one baby returned to Australia with its commissioning parents (following the granting of a visa enabling the child’s travel into Australia), the other twin was abandoned in India, reportedly on the basis that the commissioning parents did not want two babies, with the gender of the children forming the basis

4.2

53

54 55 56 57

According to para 3.5.4 of the Indian Council of Medical Research, and National Academy of Medical Sciences, National Guidelines for Accreditation, Supervision and Regulation of art Clinics in India (2005), ‘the birth certificate shall be in the name of the genetic ­parents’. However, the National Guidelines do not have binding force of law in India. Smith Rustad NM & Pettersen G ‘Mener norske myndigheter gjør tvillinger statsløse’ nrk 23 March 2011. Johansen B & Pettersen BM ‘Volden får beholde tvillingene’ nrk 07 May 2011. Lysvold S et al. ‘Kari Ann Volden får komme hjem’ nrk 16 April 2011; Melhuus M Problems of Conception: Issues of Law, Biotechnology, Individuals and Kinship (2012) 85. Howard S ‘Taming the international commercial surrogacy industry’ 349 bmj (2014) 6334.

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of their decision regarding which child to keep.58 It was further reported that someone known to the commissioning parents’ family eventually assumed responsibility for the abandoned child.59 4.3 Baby A This case, reported in the New Zealand Family Court as In the matter of an application by DMW and KW to adopt a male child, concerns Baby A, born to a surrogate mother in Thailand in 2011.60 The ics arrangement was commissioned by Mr DW and Mrs KW, using Mr DW’s sperm and the donated egg of Mrs KW’s niece.61 Embryo transfer occurred at a clinic in Chang Mai, and the commissioning parents travelled to Thailand from New Zealand for the birth of their intended child and assumed care of Baby A following birth. Subsequently, a Thai birth certificate was issued for Baby A, recording Mr DW and his surrogate mother as his parents; a few weeks later a Thai passport was issued in Baby A’s name.62 Mr DW and Mrs KW then applied to the New Zealand immigration authorities seeking permission to travel to and enter New Zealand with Baby A.63 Immigration New Zealand requested dna testing to confirm Baby A’s genetic makeup as being linked to Mr DW. However, the test results showed that Baby A was genetically unrelated to his commissioning father, and also not related to his egg-donor mother (Mrs KW’s niece).64 Given the unexpected nature of these results, dna testing was repeated; however, it again returned negative results about the intended genetic makeup of the child.65 Judge DA Burns noted: It appears that a mistake may have been made at some point during one of the medical procedures. The identity of this child and his genetic ­parents are currently unknown. The Court is advised that the hospital responsible for the medical procedures has not cooperated or assisted in trying to locate or ascertain the biological parents of the child.66 58 59 60 61 62 63 64 65 66

Hawley S & Smith S ‘Australian High Commission knew of disturbing Indian surrogacy case, Chief Justice of Family Court says’ abc News 9 October 2014. Hawley S & Smith S ‘Australian High Commission knew of disturbing Indian surrogacy case, Chief Justice of Family Court says’ abc News 9 October 2014. In the matter of an application by DMW and KW to adopt a male child [2012] nzfc 2915 [1]. In the matter of an application by DMW and KW to adopt a male child [2]. In the matter of an application by DMW and KW to adopt a male child [4]. In the matter of an application by DMW and KW to adopt a male child [5]. In the matter of an application by DMW and KW to adopt a male child [5]. In the matter of an application by DMW and KW to adopt a male child [6]. In the matter of an application by DMW and KW to adopt a male child [7].

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Judge Burns’ description of Baby A’s identity as ‘unknown’ highlighted the reality that Baby A does not have any information available to him about his genetic antecedents. Moreover, given the unavailability of this information, he is left with no way of knowing his genetic parents. Whilst identity is not constituted solely of genetics, identity does include a genetic element, as indicated by the United Nations Committee on the Rights of the Child.67 On the assumption that their ics arrangement had been undertaken on the basis that they had entered into it (that is, that Baby A would be Mr DW’s genetic child), Mr DW and Mrs KW had assumed care of Baby A from birth. Despite discovering the absence of a genetic link with Baby A, Mr DW and Mrs KW decided that they wished to adopt regardless of this fact. Following an intercountry adoption process, Baby A was eventually able to enter New Zealand and reside with Mr DW and Mrs KW as their legal child.68 4.4 Baby Teodoro In 2014 the European Court of Human Rights delivered judgments in its first applications concerning ics arrangements and the rights of the children born as a result.69 Not long afterwards, the European Court delivered a third judgment concerning an ics situation, in Paradiso and Campanelli v Italy.70 This case illustrates once again the complexity of the situation when a child is conceived and born through ics. It involves Baby Teodoro, a child born in Russia in 2011 to a Russian surrogate mother.71 His commissioning parents (Mr Campanelli Paradiso and Mrs Paradiso) are Italian nationals who have no genetic link with Teodoro,72 despite having intended that Mr Campanelli would be Teodoro’s genetic f­ ather.73 However, Teodoro’s Russian birth certificate recorded Mr Campanelli Paradiso and Mrs Paradiso as his parents.74 Following his birth, Teodoro travelled to Italy with his commissioning parents (remaining in their care for six months). When they 67

68 69 70 71 72 73 74

For example, Committee on the Rights of the Child Concluding observations regarding the Holy See 25 February 2014, CRC/C/VAT/CO/2 at para 36 stating that the Holy See must take ‘into full account the right of children to know their biological parents and siblings’. Woulfe C ‘The untold story of NZ’s surrogate babies’ 3830 The Listener (26 September 2013) 20. Mennesson v France (App. No. 61592/11), judgment of June 26, 2014; Labassee v France (App. No.65941/11), judgment of June 26, 2014. Paradiso and Campanelli v Italy (App. No. 25358/12) judgment of 27 January 2015. Paradiso and Campanelli v Italy (App. No. 25358/12) judgment of 27 January 2015 [1]. Paradiso and Campanelli v Italy (App. No. 25358/12) judgment of 27 January 2015 [6] and[19]. Paradiso and Campanelli v Italy (App. No. 25358/12) judgment of 27 January 2015 [6]. Paradiso and Campanelli v Italy (App. No. 25358/12) judgment of 27 January 2015 [1].

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sought to register Teodoro as an Italian citizen, Italian authorities suspected that Teodoro was born through international surrogacy. Consequently, they refused to recognise the validity of Teodoro’s birth certificate, seeing as it listed the Campanelli Paradisos as Teodoro’s parents.75 When dna testing showed there was no genetic link between Campanelli and Teodoro, the Italian authorities removed Teodoro from the care of his commissioning parents, placing him in the care of a state children’s home and banning them from having contact with him.76 After almost two years in state care, Teodoro’s care was transferred to foster parents;77 Italy ordered the issuance to Teodoro of an Italian birth certificate, stating his parents as ‘unknown’.78 Among other things, the Campanelli Paradisos argued Teodoro’s removal from their care and the refusal to recognise them as Teodoro’s legal parents amounted to a breach of their rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (echr), which protects the right to respect for family and private life. In brief, the European Court of Human Rights said that although Teodoro was in the care of his commissioning parents for a relatively short period of time, this period was formative in terms of his development.79 It found that Italy was not justified in removing Teodoro from the care of his commissioning parents; this was an extreme measure, and Teodoro was not in imminent danger. Teodoro had also been left without a legal identity or legal status for more than two years, contrary to his rights under the crc. Ultimately, Italy was held to have violated article 8 in regard to Mr Campanelli and Mrs Paradiso’s right to respect for private life.80 However, the Court said that given the intervening years since Teodoro’s removal from his commissioning parents’ care and his subsequent placement with a foster family, Italy was not required to return him to Mr Campanelli and Mrs Paradiso, in view of the attachment he had developed to his foster family.81 The four ics cases presented above illustrate the fact that commissioning parents can face high levels of uncertainty regarding the children they have taken intentional decisions to create across international borders via the involvement of third parties. Furthermore, the cases underscore some of the 75 76 77 78 79 80 81

Paradiso and Campanelli v Italy (App. No. 25358/12) judgment of 27 January 2015 [20]. Paradiso and Campanelli v Italy (App. No. 25358/12) judgment of 27 January 2015 [23]. Paradiso and Campanelli v Italy (App. No. 25358/12) judgment of 27 January 2015 [31]. Paradiso and Campanelli v Italy (App. No. 25358/12) judgment of 27 January 2015[34]–[35]. Paradiso and Campanelli v Italy (App. No. 25358/12) judgment of 27 January 2015[69]. Paradiso and Campanelli v Italy (App. No. 25358/12) judgment of 27 January 2015 [80]–[81]. Paradiso and Campanelli v Italy (App. No. 25358/12) judgment of 27 January 2015 [88].

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challenges inherent in ics for the rights of the child. In the light of these cases, and with reference to the framework of rights protection established by the crc, the next section foregrounds those children’s rights that are most at risk in ics situations. 5

The Rights of the Child Most at Risk in ics Situations

5.1 Right to Preserve Identity The child’s right to preserve his or her identity is established under article 8(1) of the crc: States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference. Whilst certain elements of the child’s identity (nationality, name and family relations) are explicitly stated within article 8(1), identity is not restricted to these elements. This is indicated by the use of the word ‘including’ in article 8(1), which leaves open the possibility of a dynamic understanding of what may constitute elements of the child’s identity. Identity can therefore be understood as a broad concept that incorporates a wide range of elements such as those identified by Hodgkin and Newell.82 Article 8(2) also obliges crc States Parties to provide appropriate assistance and protection to children who are illegally deprived of aspects, or all elements, of their identity in order for that identity to be re-established. The right of children to preserve their identity is particularly at risk in ics due to the circumstances of their conception and birth, which may variously involve anonymous gamete donors, anonymous surrogates and, in all cases, birth in a country (and possibly a culture) different to that in which they are intended to spend their childhood. As such, children might face challenges in exercising their right to preserve a number of different elements of their identity. This is aggravated by the fact that there is no system safeguarding vital identityrelated information about the child’s genetic parentage and personal history in relation to the circumstances of their conception and birth. 82

Hodgkin P & Newell R Implementation Handbook for the Convention on the Rights of the Child 3 ed (2007) 115. For example, these include elements such as the child’s personal history since birth (including information about where the child lived and who cared for him or her) and his or her race, culture, religion and language.

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With regard to the child’s identity, it is also important to emphasise two features of all ics situations. These are the intentionality behind the creation of children through ics and the child’s lack of agency. In some ics cases (for example, where anonymous gametes and/or surrogates are involved), commissioning parents essentially create conditions in which children have no opportunity or ability to preserve their identity, given that elements of their identity remain permanently beyond their reach. Children such as Adrian and Mikael Volden will never have the opportunity to trace their genetic origins or know their genetic parents, seeing as their gametes were provided on the basis of anonymity. They will not be able to know aspects of their personal history, including, for example, critical health, ethnic and cultural-heritage information. For Baby A, given the apparent clinical mixup of reproductive matter, his genetic heritage remains even more unknown. Whereas the Volden twins will be able to know the nationality of their genetic parents, Baby A does not have even this information available to him. Furthermore, in Teodoro’s situation, removed into state care at an early age and without a legally recognised identity for a long period of time, questions must be raised about the extent to which this formative part of his personal narrative will be preserved for him. However, it is acknowledged that the European Court of Human Rights judgment in Paradiso and Campanelli v Italy preserves some of this narrative, although only as a result of the legal proceedings brought concerning Teodoro. This preservation may be important for him as he grows older and perhaps seeks to understand how he came into the world and what happened to him in his infancy. 5.2 Right to Acquire a Nationality The child’s right to acquire a nationality, as stated in article 7(1) of the crc, is also rendered precarious in certain ics situations due to the application of conflicting national laws governing nationality and parentage (as discussed in Section 3). As such, the spectre of statelessness is a real possibility for a child born through ics. In the case of Adrian and Mikael Volden, who were stateless and without a recognised child-parent relationship for their first months, their legal status was highly uncertain and insecure. Despite the fact that a solution was eventually found to their situation, resolving child statelessness in ics through ad hoc, exception-to-policy-style decisions is unsatisfactory. It is clear that statelessness is inconsistent with human rights norms, and the United ­Nations Commissioner for Refugees has recently set an international goal that no child should be born stateless.83 83

United Nations High Commissioner for Refugees Division of International Protection Global Action Place to End Statelessness 2014–2024 November 2014 Action 2 at 9.

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For children whose statelessness occurs due to their conception and birth through ics, their situation is precarious given that their right to freedom of movement is curtailed;84 they may not be able to be cared for by their parents;85 and they may face difficulties in accessing social services as well as practical day-to-day challenges associated with their lack of nationality.86 Children born stateless following their birth through ics may also be at an increased risk of being trafficked or exploited in view of their lack of legal status and of a clear line of parental care and protection.87 Not giving effect to the child’s right to nationality in ics situations also has an impact on the child’s identity rights, bearing in mind the intersection between the child’s article 7 and article 8 crc rights. Indeed, article 8(1) explicitly mentions nationality as an aspect of the child’s identity. As Doek asserts, ‘In cases of doubts [sic] concerning the child’s nationality the obligation to prevent statelessness and to respect the child’s right to preserve his/her identity would entail that the child is provided with the nationality of the country where he/she was born.’88 The European Court of Human Rights emphasised the intersection between nationality and identity in its Mennesson and Labassee judgments. In dealing with children born through international surrogacy arrangements in the United States to French commissioning parents who were unable to acquire French nationality, the Court’s Chamber stated that nationality is an element of identity and that when a child is prevented from acquiring a nationality, he or she is prevented from fully establishing and preserving his or her identity.89 Some states appear to be beginning to acknowledge the importance of enabling children born through ics to acquire nationality, especially where they would otherwise be stateless. The French government accepted the Mennesson and Labassee decisions, and the children involved have since received French nationality;90 the Court’s decisions in these cases have implications for other High Contracting Parties to the echr. In a further indication of potential state 84

Art. 13(1) Universal Declaration of Human Rights (1948) General Assembly Resolution 217A(iii) un Doc A/810 71 (1948). 85 Under Article 7(1) crc the child has a right as far as possible to know and be cared for by his or her parents. 86 Mennesson v France (App. No. 61592/11), judgment of June 26, 2014 [88]. 87 For further discussion see Pascoe J State of the Nation – Federal Circuit of Australia – ­Address to 16th National Australia Family Law Conference fcma (2014) FedJSchol 21. 88 Doek JE ‘The crc and the right to acquire and to preserve a nationality’ (2006) 25:3 ­Refugee Survey Quarterly 31. 89 Mennesson v France (App. No. 61592/11), judgment of June 26, 2014 [76]. 90 See http://www.coe.int/t/dghl/monitoring/execution/Reports/pendingCases_en.asp?Cas eTitleOrNumber=mennesson&StateCode=&SectionCode= (accessed 5 July 2015).

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recognition of the need to deal with the nationality issue for children born through ics in a manner consistent with their rights under the crc, Norway has reacted to the situation of Adrian and Mikael Volden and other children born to Norwegian commissioning parents through ics. In 2013, the Norwegian Parliament added a temporary provision to its citizenship law enabling children born through international surrogacy to automatically acquire Norwegian citizenship where parenthood is transferred lawfully to a Norwegian citizen.91 5.3 Right to Know and be Cared for by Parents Article 7(1) of the crc states that the child has the right to know and be cared for by his or her parents as far as possible; in addition, the crc’s preamble declares that children should grow up in a family environment. However, as already noted, it is often difficult for commissioning parents to establish a legal parent-child relationship with a child born through an ics arrangement. This is due largely to the legislative and regulatory gaps and conflicts discussed in Section  3. In view of the circumstances at work in the cases of Baby A and ­Teodoro, it can be argued that both of the children were prevented at times from being cared for by their parents as far as possible. These cases also show that in ics situations it can be contestable who the child’s ‘parents’ are, given that there are likely to be more than just two people with a credible claim to a parent-child relationship. This complicates the picture for the child, and this complexity often means there is a time lag between the child’s birth and decisions that determine who is recognised as his or her parents under law; during the time in which the child is without a legal parent-child relationship, his or her legal status remains largely undetermined. This heightens the child’s vulnerability, given the uncertainty that surrounds matters such as who can make decisions regarding the child, who is acting to protect the best interests of the child and whether the child is entitled to state assistance and support. In addition, the child’s rights under article 7(1) of the crc are at risk in ics situations due to the possibility of the child being abandoned by their commissioning parents, as evidenced by the case of the twin abandoned in India. 91

Temporary amendment to Lov om norsk statsborgerskap (statsborgerloven) (the Norwegian Nationality Act) June 10, 2005 passed by the Stortinget 8 March 2013, available at https://lovdata.no/dokument/NL/lov/2005-06-10-51#KAPITTEL_2 (accessed 20 January 2015). See also Olsen edh ‘Update on 2012 and 2013 revisions of Norwegian Citizenship Law: Procedural issues and citizenship for infants born abroad to surrogate mothers’ eudo 12 January 2014.

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This child no longer has the possibility of being cared for by their commissioning parents, and it appears they have no intention of having the child know them. The abandonment of the one twin – as was the case too for Baby Gammy and his twin sister Pipah – also prevents the twin ics children from growing up in the family environment they were intended to have. Along with the uncertainty as to who their commissioning parents are and what their intentions were, this may have intersecting implications for the development of both twins’ personal identities and their ability to exercise and enjoy their right to preservation of identity under article 8(1) of the crc. 5.4 The Principles of Non-discrimination and Best Interests In this discussion of the child’s rights most at risk in ics situations, it is important to draw attention to the crc’s non-discrimination principle as set out in article 2. It states that the rights set out in the Convention will be respected and guaranteed to each child within a States Party’s jurisdiction ‘without discrimination of any kind, irrespective of the child’s or his 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’. However, the non-discrimination principle is often not respected and upheld when it comes to children in ics situations. They may experience discrimination on the basis of a number of factors, such as birth status (by virtue of being born through ics), which may prevent them from being registered (as was the case for the Volden twins and baby Teodoro in Norway and Italy, respectively); and on the basis of sex or disability, which may see them ending up as abandoned (as in the case of the Australian twin in India). Furthermore, it is important to recall the best interests principle established under article 3 of the crc, which states that ‘[i]n 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’. Yet what has become apparent in this chapter is that in many instances the child’s best interests are not treated as a primary consideration in ics situations. This is clearly to the detriment of children and their rights, and is inconsistent with what is in their best interests both in the present and future. As Keyes notes with regard to adoption, ‘[T]he adoption cycle is lifelong.’92 This can be applied equally to the ics context, as conception and birth through ics will have lifelong implications for the child, 92

Keyes M ‘Australia puts children at risk by “freeing up” the adoption market’ The Conversation 8 September 2014.

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therefore making it imperative to ensure that actions relating to the child give primacy to his or her best interests. 6

Preliminary Ideas for Guidance on Protecting the Child’s Rights in ics

Taking into account the key rights considered above, this section puts forward some preliminary ideas for guidance on protecting the child’s rights in ics situations. It is acknowledged that ics is a dynamic phenomenon and one which in the absence of international consensus regarding its regulation is likely to remain a method of twenty-first century family formation. In the face of this consensus deficit, guidance on protecting the rights of children conceived and born through ics will be a useful tool for states and all parties involved in ics. This guidance could potentially act as a soft-law document (depending on how it is adopted and endorsed) and should draw on the existing norms and standards set by international human rights law, especially the key provisions of the crc covered in the preceding section. Such guidance would serve a dual purpose. First, it would be a mechanism highlighting the need to protect children in ics situations, in the face of the persistent absence of an agreed international position on ics and the gaps and conflicts in domestic law. The guidance is intended to help ensure that the child and his or her rights are a first priority for states and all parties involved in ics situations before, during and after the child is born. Second, guidance can act as a touchstone for all parties involved in ics (including states) to actively protect and uphold the rights of the child in practice in ics. The guidance will indicate a pathway towards best practice when taking actions concerning children in ics situations. Having identified the purpose and value of guidance on protecting child rights in ics, this chapter outlines some preliminary ideas that can inform, and act as the basis for, the development of guidance of this kind. The ideas presented are not exhaustive; the author intends to develop such guidance as part of her current doctoral studies. Preliminary ideas for guidance on protecting the child’s rights in international commercial surrogacy situations include the following: • Children have a right to preserve their identity; in the context of ics this includes having the possibility of knowing their genetic parents, surrogate mother and their commissioning parents, and having access to information supporting this (links to article 8 of the crc).

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• Children born through ics should, at the earliest possible stage, be able to establish a child-parent relationship recognised under law; where this is not possible, a legal guardian should be appointed to act in the best interests of the child (links to article 7 of the crc). • Children born through ics must have their birth registered immediately after birth and acquire the nationality either of their birth state or their commissioning parents to prevent them from becoming stateless and to give effect to their wider rights (links to articles 7 and 8 and associated rights). • In all actions and decisions concerning a child born through ics, whether undertaken by private actors (for example, parents and medical professionals) or state actors (for example, consular staff, ministers, social workers and judges), the child’s best interests shall be a primary consideration (links to article 3 of the crc) and the child will be treated without discrimination regarding his or her birth status through ics or on any other ground of discrimination (links to article 2 of the crc). • At the domestic level, states must commit to reviewing their legislation, policy and practice relating to ics. Such a review must consider: ○ the direct and indirect impact of its law, policy and practice on the rights of the child born through ics either in the state’s own territory or outside that territory to its own state nationals or residents; and ○ what steps need to be taken at the national level to implement the crc (in the absence of international consensus on ics) to ensure that children born through ics are able to exercise their crc rights. 7 Conclusion Not all children conceived and born through ics find themselves in situations such as those discussed in this chapter. However, it is clear that some children in this category are born into risk-laden circumstances with potentially lifelong implications. Many of the child’s rights under the crc are placed at risk by virtue of his or her conception and birth through ics; in some instances, these rights are being breached. Implementing future guidance focused on protecting the rights of the child in ics situations will ideally lead to the crc’s ‘protective shadow’93 being cast over this group of children. With a particular focus on the child’s rights relating to identity, nationality, parentage and the principles of non-discrimination and best interests under the crc, the preliminary ideas for guidance on protecting the child’s rights 93

Ellison v Karnchanit [2012] Fam ca 602 [84].

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in ics situations presented in this chapter envisage a minimum ideal state whereby: • children born through ics are able to preserve their identity to the greatest extent possible from birth, through systematic safeguarding of identity information; • children born through ics have a clear and secure child-parent relationship recognised by law at the earliest possible stage; • children born through ics are registered immediately after birth and are able to acquire a nationality, providing them with a citizenship status under law and facilitating their right to freedom of movement; • children conceived and born through ics are treated in a manner which is non-discriminatory, regardless of the circumstances of their conception and birth through ics or any other prohibited grounds of discrimination; • all decisions and actions relating to children born through ics are guided by the principle of the best interests of the child, leading to outcomes for the child consistent with, and giving effect to, their crc rights; and • all states are actively engaged in considering the impact of their laws, policies and practices on the rights of children born through ics and how they can align their practice to ensure that the child’s crc rights are upheld and safeguarded in the ics context. In the absence of international consensus on the practice of ics at a fundamental level (for example, consensus as to whether it should be prohibited or regulated and allowed to continue), a pragmatic aim given the ongoing practice of ics is to establish a minimum ideal state placing the child and his or her rights at the centre of ics. This is a valid aim despite the lack of international consensus concerning ics, as the children who continue to be born this way should not have their rights negatively impacted through no fault of their own. The child rights challenges arising in ics have the potential to affect an entire new generation of children. We should thus take action on these issues now, to ensure we do not have to address entrenched problems for these children once they are adults when we meet again in 2040, celebrating 50 years of the crc. Bibliography Books

Connell J Medical Tourism (2011) CABI. DasGupta S & Dasgupta SD Globalization and Transnational Surrogacy in India: O ­ utsourcing Life (2014) Lexington Books.

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Detrick S, Doek E & Cantwell N The United Nations Convention on the Rights of the Child: A Guide to the Travaux Préparatoires (1992) Dordrecht: Martinus Nijhoff. Golombok S Modern Families: Parents and Children in New Family Forms (2015) ­Cambridge: Cambridge University Press. Hodgkin P & Newell R Implementation Handbook for the Convention on the Rights of the Child 3 ed (2007) Geneva: UNICEF. Killkelly U The Right to Respect for Private and Family Life: A Guide to the Implementation of Article 8 of the European Convention on Human Rights (2001) Directorate General of Human Rights, Council of Europe. Melhuus M Problems of Conception: Issues of Law, Biotechnology, Individuals and Kinship (2012). Zelizer VA Pricing the Priceless Child: The Changing Social Value of Children (1994) Princeton University Press.

Chapters in Books

Ergas Y ‘Thinking “through” human rights: The need for a human rights perspective with respect to the regulation of cross-border reproductive surrogacy’ in Trimmings K & Beaumont P (eds) International Surrogacy Arrangements: Legal Regulation at the International Level (2013).

Articles

3 News ‘Parents of surrogate born daughter battle to bring her home’ 28 August 2009, available at http://www.3news.co.nz/entertainment/parents-of-surrogate-­borndaughter-battle-to-bring-her-home-2009082819#axzz3PrZ7tV6y (accessed 20 January 2015). Ball S ‘Protestors take to streets over French govt’s “familyphobia”’ France 24 5 2014, available at http://www.france24.com/en/20141005-protesters-take-streets-over -french-govt-familyphobia-paris-manif-pour-tous/ (accessed 20 January 2015). BBC ‘Thailand bans commercial surrogacy for foreigners’ BBC News 20 February 2015 available at http://www.bbc.com/news/world-asia-31546717 (accessed 30 June 2015). Bromfield NF & Rotabi KS ‘Global surrogacy, exploitation, human rights and international private law: A pragmatic stance and policy recommendations’ (2014) 1(3) Global Social Welfare 123–35. Cook M ‘Surrogacy a US$2.3 billion industry in India with 1,000 clinics’ Bioedge 2  June 2012, available at http://www.bioedge.org/index.php/bioethics/bioethics _­article/10089 (accessed 20 January 2015). Doek JE ‘The CRC and the right to acquire and to preserve a nationality’ (2006) 25(3) Refugee Survey Quarterly 26–32. Fontanella-Kahn A ‘India, the rent-a-womb capital of the world’ Slate 23 2010, ­available at http://www.slate.com/articles/double_x/doublex/2010/08/india_the_rentawomb _capital_of_the_world.html (accessed 20 January 2015).

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Hawley S ‘Baby Gammy: Surrogate mum says Australian parents saw baby in hospital, disputes claim they didn’t know he existed’ ABC News 5 August 2014, available at http://www.abc.net.au/news/2014-08-04/baby-gammy-surrogate-mum-says-parents-saw-baby-in-hospital/5647440 (accessed 20 January 2015). Hawley S & Smith S ‘Australian High Commission knew of disturbing Indian surrogacy case, Chief Justice of Family Court says’ ABC News 8 October 2014, available at http://www.abc.net.au/news/2014-10-08/high-commission-knew-of-surrogacycase-in-india/5799438 (accessed 20 January 2015). Howard S ‘Taming the international commercial surrogacy industry’ 349 BMJ (2014) 6334. Johansen B & Pettersen BM ‘Volden får beholde tvillingene’ NRK 7 May 2011, available at http://www.nrk.no/nordland/volden-far-beholde-tvillingene-1.7622605 (accessed 20 June 2015). Keyes M ‘Australia puts children at risk by “freeing up” the adoption market’ The Conversation 8 2014, available at https://theconversation.com/australia-puts-childrenat-risk-by-freeing-up-the-adoption-market-31064 (accessed 20 June 2015). Lysvold S et al. ‘Kari Ann Volden får komme hjem’ NRK 16 April 2011, available at http:// www.nrk.no/nordland/kari-ann-volden-far-komme-hjem-1.7596488 (accessed 20 January 2015). Malhotra A ‘Ending discrimination in surrogacy laws’ The Hindu 3 May 2014, available at http://www.thehindu.com/opinion/op-ed/ending-discrimination-in-surrogacylaws/article5970609.ece (accessed 20 January 2015). Olsen EDH ‘Update on 2012 and 2013 revisions of Norwegian Citizenship Law: Procedural issues and citizenship for infants born abroad to surrogate mothers’ EUDO 12 2014, available at http://eudo-citizenship.eu/news/citizenship-news/1030 -update-on-2012-and-2013-revisions-of-norwegian-citizenship-law-procedural -issues-and-citizenship-for-infants-born-abroad-to-surrogate-mothers (accessed 20 January 2015). Pascoe J ‘State of the Nation – Federal Circuit of Australia’ Address to 16th National Australia Family Law Conference FCMA (2014) FedJSchol 21, available at http://www.austlii.edu.au/au/journals/FedJSchol/2014/21.html (accessed 5 July 2015). Roy SD ‘Stateless twins live in limbo’ The Times of India 2 February 2011, available at http://timesofindia.indiatimes.com/city/mumbai/Stateless-twins-live-in-limbo/articleshow/7407929.cms (accessed 20 January 2015). Smith Rustad NM & Pettersen G ‘Mener norske myndigheter gjør tvillinger statsløse’ NRK 22 March 2011, available at http://www.nrk.no/fordypning/statslose-tvillinger -1.7553860 (accessed 20 June 2015).

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Tobin J ‘To prohibit or permit: What is the (human) rights response to the practice of international commercial surrogacy?’ (2014) 63(2) International and Comparative Law Quarterly 317–52. Vincent C & Aftandilian AD ‘Liberation or exploitation: Commercial surrogacy and the Indian surrogate’ (2013) 36 Suffolk Transnational Law Review. Woulfe C ‘The untold story of NZ’s surrogate babies’ 3830 The Listener 26 September 2013, available at http://www.listener.co.nz/current-affairs/the-untold-story-of-nzssurrogate-babies/ (accessed 9 February 2016).

Reports

Center for Social Research Surrogate Motherhood – Ethical or Commercial (2012).

Cases

Ellison v Karnchanit [2012] Fam CA 602. In the matter of an application by DMW and KW to adopt a male child [2012] NZFC 2915. Labassee v France (App. No. 65941/11), judgment of June 26, 2014. Mennesson v France (App. No. 61592/11), judgment of June 26, 2014 M.R. & D.R and O.R.& C.R v An tArd Chláraitheoir, Ireland and The Attorney General [2014] IESC 60. Paradiso and Campanelli v Italy (App. No. 25358/12), judgment of 27 January 2015.

Miscellaneous

Department of Internal Affairs, Child Youth and Family and Immigration New Zealand International Surrogacy Information Sheet, available at http://www.cyf.govt .nz/documents/adoption/is-information-sheet-june2011.pdf (accessed 20 January 2015). Hague Conference on Private International Law ‘The private international law issues surrounding the status of children, including issues arising from international surrogacy arrangements: Mandate’, available at http://www.hcch.net/index_ en.php?act=text.display&tid=179 (accessed 5 July 2015). Indian Council of Medical Research and National Academy of Medical Sciences National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (2005). Ombudsman for Children Advice of the Ombudsman for Children on the General Scheme of the Children and Family Relationships Bill 2014 (2014). Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, New York, 25 May 2000, entry into force 18 January 2002.

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Permanent Bureau of the Hague Conference on Private International Law A Preliminary Report on the Issues Arising from International Surrogacy Arrangements (Preliminary Document No. 10 of March 2012 for the attention of the Council of April 2012 on General Affairs and Policy of the Conference) (2012). Permanent Bureau of the Hague Conference on Private International Law Issues Surrounding the Status of Children, Including Issues Arising From International Surrogacy Arrangements (Preliminary Document No. 11 of March 2011 for the ­attention of the Council of April 2011 on General Affairs and Policy of the Conference) (2011). Permanent Bureau of the Hague Conference on Private International Law The ­Desirability and Feasibility of Further Work on the Parentage/Surrogacy Project (­Preliminary Document No 3 B of April 2014 for the attention of the Council of April 2014 on General Affairs and Policy of the Conference) (2014). Sama Resource Group for Women and Health Birthing a Market: A Study on Commercial Surrogacy (2012) New Delhi. United Nations High Commissioner for Refugees Division of International Protection Global Action Plan to End Statelessness 2014–2024 November 2014.

chapter 26

Taking Stock of Bullying and Cyberbullying Research and Introducing a Child Rights Perspective Mona Paré, Tara Collins and Miad Ranjbar1 Abstract This chapter discusses bullying from a child rights perspective. There has been a wealth of research on bullying in the academic community, but a review of literature reveals a lack of uniformity in how the problem is understood. In particular, children’s rights are rarely considered in relation to these issues. The human rights of children are relevant, however, and should inform research. Child rights provide a common vision of respecting children, and are fundamentally important to our understanding of children and how we support them in society. In this chapter, it is submitted that the language of child rights is generally absent in research on bullying and cyberbullying. It is our contention that child rights can help inform our understanding of the issues and participants involved. The chapter first provides definitions derived from the literature and investigates descriptions of bullying as well as the relationship between them. The second section of the chapter examines the pertinence of child rights to our understanding of and research about bullying, including cyberbullying. The conclusion identifies an avenue of future research.

1 Introduction The problems of bullying, and more specifically cyberbullying, among children and youth have captured the world’s attention in recent years.2 Consequently, there has been a wealth of research in the academic community,3 1 This research was supported by the Social Sciences and Humanities Research Council of Canada and the Office of the Dean, Faculty of Community Services, Ryerson University. 2 For example, a Google search (as of January 16, 2015) retrieves approximately 80,900,000 results for the phrase ‘bullying’, and for ‘cyberbullying’ and ‘cyber bullying’, about 5,510,000 and 11,900,000 results, respectively. 3 See Olweus D & Limber S ‘Bullying in school: Evaluation and dissemination of the Olweus Bullying Prevention Program’ (2010) 80(1) American Journal of Orthopsychiatry 124 (hereinafter ‘Bullying in School’). © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_027

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but as ­discussed in this chapter, a review of the research reveals a lack of uniformity in how the problem is understood. In particular, children’s rights are rarely considered in relation to these issues. The human rights of children are pertinent, however, since they are international legal obligations that should inform efforts related to young people in every State Party to the un Convention on the Rights of the Child (crc),4 which now includes 196 such parties, or almost every country in the world.5 In the light of these international legal obligations, child rights provide a common vision of respecting children: the rights are fundamentally important to our understanding of children and how we support them in society. ­Duty-bearers have the responsibility to support children and their human rights, while researchers concerned with children should also heed the obligations of children’s rights.6 This applies as well to the issue of violence among young people. Hence, it is important to examine how child rights are relevant to research about, and responses to bullying and cyberbullying. In this chapter, it is submitted that the language of child rights is generally absent in research on bullying and cyberbullying. It is our contention that child rights can help inform our understanding of the issues and participants involved. This present research project relies upon international scholarship to explore the phenomenon of bullying and cyberbullying and the ways in which we examine and understand it. Using the terminology from the original sources, the chapter first provides definitions derived from the literature and investigates descriptions of bullying and cyberbullying. Building on this literature review, the second section of the chapter examines the pertinence of child rights to our understanding of bullying and, more particularly, of how cyberbullying can be combated. The conclusion identifies an avenue of future research. 2 Bullying In order to analyse bullying and cyberbullying from the perspective of child rights, it is important to first gain a solid understanding of what is behind these 4 un Convention on the Rights of the Child (1989), adopted by un General Assembly on 20 November 1989, un Doc. A/RES/44/25, entered into force 2 September 1990. 5 United Nations ‘United Nations Treaty Collection: Chapter iv Human Rights, 11. Convention on the Rights of the Child’, New York, 20 November 1989. 6 Collins TM ‘The role and implications of children’s rights for research about children’, International Conference 25 years Convention on the Rights of the Child (crc), Department of Child Law, Leiden University, Leiden, The Netherlands, November 18–19, 2014; and forthcoming paper.

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terms, and what kind of research results are available. This is done by examining definitions of terms and descriptions of the concepts. The examination shows us how the understanding of bullying and cyberbullying has evolved, what the main components highlighted by researchers are, and how the two phenomena relate to each other. 2.1 Definitions of Bullying in Literature Ever since Olweus initiated research on bullying in the early 1970s, the number of publications on the topic has multiplied.7 The wealth of research means that many definitions of bullying have been developed; it also means that over time, as research has progressed and the different facets of the phenomenon have unfolded, those definitions have become more complex. This section examines the main elements of the definitions included in the literature. An early definition by Olweus from the mid-1980s is quite succinct: ‘A student is being bullied or victimised when he or she is exposed, repeatedly and over time, to negative actions on the part of one or more other students’.8 More recently, the same author characterised bullying as ‘aggressive behavior or intentional harm doing that is carried out repeatedly and over time in an interpersonal relationship characterized by an actual or perceived imbalance of power or strength’.9 In the late 1990s, Smith formulated a definition that has become a consensual understanding among researchers and which is close to the second definition offered by Olweus: [B]ullying is aggressive behaviour which intentionally hurts or harms another person; together with repetition […] and a power imbalance such that it is difficult for the victim to defend him- or herself. A succinct definition is the ‘systematic abuse of power’.10 It appears then that there are four main elements to bullying: aggressive behaviour; causing harm intentionally; doing it repeatedly; and a power imbalance exploited by the bullying child to his or her advantage. This last element, appearing in the later definitions, seems now to characterise how bullying is conceptualised, as exemplified by Smith’s concise definition. The fact that some 7 8 9 10

See Olweus & Limber ‘Bullying in school’. Olweus D Bullying at school: What we know and what we can do (1993) 9. Definition produced in English in Olweus D & Limber S ‘Bullying in school’ 125. Smith PK ‘Bullying and harassment in schools and the rights of children’ (2000) 14 ­Children and Society 294, at 295 (hereinafter ‘Bullying and harassment’).

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definitions point to the weakness of the victim reinforces the idea that there is a power dynamic at work.11 The importance of power as a characteristic has been further unpacked: Pepler’s work focuses on bullying as a relationship issue. Pepler and Craig qualify bullying as a ‘destructive relationship problem’.12 This calls to mind the ‘systematic abuse of power’ mentioned by Smith, given that the authors explain that ‘[c]hildren who bully are learning to use power and aggression to control and distress others; children who are victimised become increasingly powerless and unable to defend themselves from this peer abuse’.13 The authors include this dimension in two of the main components of bullying: aggressive behaviour and repetition. Bullying is described as ‘a form of aggressive behaviour imposed from a position of power’.14 As for repetition, according to Pepler and Craig, it consolidates the power relation. In addition to defining bullying, many authors identify types of bullying. Shariff refers to overt and covert bullying: ‘overt’ involves ‘physical aggression, such as beating, kicking, shoving, and sexual touching’, and ‘covert’ entails being ‘excluded from peer groups, stalked, stared at, gossiped about, verbally threatened and harassed’.15 Atlas and Pepler identify physical, verbal, direct and indirect bullying.16 Smith further distinguishes between indirect and relational forms.17 While recognising that the two concepts overlap, he distinguishes between these two forms of bullying, explaining that indirect bullying refers to social manipulation, while relational bullying inflicts harm to damage peer relationships. Adding to this, Blain-Arcaro et al. discuss indirect bullying as sharing commonalities with relational aggression and social aggression.18 11

12 13 14 15

16 17 18

See also Richard JF, Schneider BH & Mallet P ‘Revisiting the whole-school approach to bullying: Really looking at the whole school’ (2011) 33(3) School Psychology International 263, 264 (herineafter ‘Revisiting the whole-school approach’). The authors define bullying as a ‘form of aggressive behavior distinguished by repeated acts against weaker victims who cannot easily defend themselves’. Craig W & Pepler D ‘Understanding bullying: From research to practice’ (2007) 48(2) C ­ anadian Psychology 86, at 87 (hereinafter ‘Understanding Bullying’). Craig W & Pepler D ‘Understanding bulling’ 86. Craig W & Pepler D ‘Understanding bullying’ 86. Shariff S ‘Cyber dilemmas in the new millennium: School obligations to provide student safety in a virtual school environment’ (2005) 40(3) McGill Journal of Education 457, 458 (hereinafter ‘Cyber-dilemmas’). Atlas R & Pepler D ‘Observations of bullying in the classroom’ (1998) 92(2) The Journal of Educational Research 86, 87 (hereinafter ‘Observations of bullying’). Smith ‘Bullying and harassment’ 296. Blain-Arcaro C et al. ‘Contextual attributes of indirect bullying situations that influence teachers’ decisions to intervene’ (2012) 11 Journal of School Violence 226, 246.

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These descriptions demonstrate the difficulty of categorising a complex phenomenon that translates into a range of actions by a variety of actors. 2.2 Descriptions of Bullying Over and above providing definitions, a significant portion of research describes the various elements of bullying, notably its causes, consequences and the characteristics of victims and perpetrators. Many researchers are interested in ­developing psychological profiles of bullies and victims.19 Some justify that interest by arguing that understanding profiles and relationships helps to address the needs of bullies and victims and would thus ultimately reduce the incidence of bullying.20 While there is general consensus regarding the definition of bullying, there are some conflicting research results when it comes to describing it, especially its prevalence and the characteristics of bullies and victims. Vaillancourt, Hymel and McDougall point to these disagreements.21 They found that the psychological stereotypes associated with bullies (for example, that they are categorised as maladjusted and marginalised)22 are not necessarily true, even when the bully is disliked by his or her peers. The authors argue that in fact most bullies are popular and possess powerful leadership qualities. They are rewarded by their peers through consistent reinforcement of their bullying behaviour. Regarding victims, there are different viewpoints as to why they are c­ hosen for victimisation. Some authors point to their low friendship qualities.23 ­Others identify personal characteristics, such as being from a different family ­background, having a disability, being gay, and being from a minority ­racial background, as contributing to a higher risk of victimisation.24 Others yet d­ isagree with the notion that there is a disproportionate victimisation of 19 20

21

22 23 24

See Merrell KW et al. ‘How effective are school bullying intervention programs? A meta analysis of intervention research’ (2008) 23(1) School Psychology Quarterly 26. Olweus D ‘Bully/victim problems in school: Knowledge base and an effective intervention program’ (1997) 18(2) The Irish Journal of Psychology 170; Pepler D ‘Bullying interventions: A binocular perspective’ (2006) 15(1) Journal of the Canadian Academy of Adolescent Psychiatry 16 (hereinafter ‘Bullying interventions’). Vaillancourt T, Hymel S & McDougall P ‘Bullying is power: Implications for school-based intervention strategies’ (2003) 19(2) Journal of Applied School Psychology 157 (hereinafter ‘Bullying is power’). See, for example, the literature review in Richard J, Schneider B & Mallet P ‘Revisiting the whole-school approach’ (2011) 33(3) School Psychology International 264. Goldbaum S et al. ‘Developmental trajectories of victimization: Identifying risk and protective factors’ (2003) 19(2) Journal of Applied School Psychology 139. Smith PK & Ananiadou K ‘The nature of school bullying and the effectiveness of schoolbased interventions’ (2003) 5(2) Journal of Applied Psychoanalytic Studies 189.

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c­ ertain groups of children.25 Some authors find that it is important to differentiate between grounds for bullying. For example, homophobic bullying is reported to be a different kind of victimisation as it takes the form of omnipresent and overt discursive practices.26 However, Daley et al. note that bullying does not affect all lesbian, gay, bisexual and transgender (lgbt) youth in a similar way, and an intersectional lens is required to investigate the impact of several social disadvantages on the victimised student.27 Age and gender are common risk factors discussed in various research ­findings. According to Pepler et al., bullying episodes manifest most often during transitional years (early adolescence) and decrease thereafter.28 Salmivalli contests this decrease, noting methodological limitations in other studies.29 As for gender, it is reported that boys are more likely to be victims of bullying than girls,30 and that whereas boys engage more in physical bullying, girls tend to engage in social or relational bullying.31 However, for some scholars, such binary views of gender normalise bullying and victimisation, especially by perpetuating aggressive and heteronormative notions of masculinity.32 In addition to the interest in personal characteristics, some authors are interested specifically in the victim-bully dyad as a relationship. Pepler, in particular, argues that incidents of bullying are determined not only by certain personal characteristics of those involved but by the bully-victim dyad, which is determined in turn by a power imbalance and, finally, by social environment variables that include the role of peers and teachers.33 She discusses the need for a binocular vision of the problem: one lens focuses on the child, providing insight into individual risk factors, and a systemic lens looks at the child’s relationships, allowing us to understand how interactions may contribute to troubled patterns of bullying or victimisation.34 25 26 27

28 29 30 31 32 33 34

MacKay W ‘Safe and inclusive schooling – expensive … Quality education – priceless. For everything else there are lawyers’ (2008) 18(1) Education Law Journal 21, 48. Mishna F et al. ‘Bullying of lesbian and gay youth: A qualitative investigation’ (2009) 39 The British Journal of Social Work 1598. Daley A et al. ‘Traversing the margins: Intersectionalities in the bullying of lesbians, gay, bisexual and transgender youth’ (2007) 9 Journal of Gay & Lesbian Social Services 9 (hereafter ‘Traversing the margins’). Pepler D et al. ‘A developmental perspective on bullying’ 32 Aggressive Behaviour 376. Salmivalli C ‘Is there an age decline in victimization by peers at school?’ (2002) 44(3) Educational Research, 269. See, for example, Atlas & Pepler ‘Observations of bullying’. See, for instance, Vaillancourt et al. ‘Bullying is power’. Daley et al. ‘Traversing the margins’. Atlas & Pepler ‘Observations of bullying’. Pepler D ‘Bullying interventions’.

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Research on the characteristics of, and relationships between, bullies and victims can therefore be helpful to understand bullying, predict bullying situations, and develop more effective anti-bullying strategies and adequate reactions to bullying incidents. The same may be said of research that discusses the harm caused by bullying. All researchers agree that bullying is harmful in many respects. However, most research concentrates on the harm caused to the direct victim of bullying rather than that caused to all children affected. For example, research shows that bullying has adverse effects on the school performance of victimised children.35 Bullying also has serious consequences for mental health, including depression and anxiety disorders.36 There are also consequences of bullying for the perpetrators, including becoming engaged in delinquency at a later stage.37 Experiencing victimisation in childhood and adolescence may also have a relationship with future violence.38 Research on bullying therefore gives us basic indications as to why bullying occurs, who may be involved in aggressive behaviour and victimisation, and what consequences this may have. It shows that, even after an impressive body of research accumulated especially in the last 20 years, bullying is complex and multifaceted, which explains the contrasting findings by researchers. In view of the various research methods employed within specific disciplines and the different sizes of samples within delimited geographical areas, one needs to recognise the limitations of empirical research in this area and not consider research findings as universally applicable or offering a comprehensive view of bullying. 3 Cyberbullying Bullying in the cyber space has become a new subject of research in the last ten years, usually as a subcategory of bullying. While cyberbullying, as the least

35

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Brown K, Jackson M & Cassidy W ‘Cyber-bullying: Developing policy to direct responses that are equitable and effective in addressing this special form of bullying’ (2006) 57 Canadian Journal of Educational Administration and Policy 1 (herineafter ‘Cyber-bullying: Developing policy’). Brown K, Jackson M & Cassidy W ‘Cyber-bullying: Developing policy’. Olweus D ‘Bullying at school and later criminality: Findings from three Swedish community samples of males’ (2011) 21 Criminal Behaviour and Mental Health 151. Ttofi MM, Farrington DP & Losel F ‘School bullying as a predictor of violence later in life: A systematic review and meta-analysis of prospective longitudinal studies’ (2012) 17(5) Aggressive and Violent Behaviour 405.

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reported form of bullying,39 may be less common than it is generally believed to be, the increased use of technology in bullying is undisputed.40 This section examines definitions and descriptions of cyberbullying, in addition to discussing the relationship between bullying and cyberbullying. 3.1 Definitions of Cyberbullying Given the fact that cyberbullying is a new phenomenon, it is noted that, as yet, there is no clear and agreed-upon definition,41 but it is generally understood as bullying that occurs through technological means. Bonanno and Hymel define it broadly as ‘using electronic means to harm intentionally an intended target (victim)’.42 Shariff specifies that it includes the use of ‘cell-phones, websites, web-cams, chat rooms, and email […] mud rooms [… and] sexual photographs’.43 Smith et al. have chosen to adapt the general definition of bullying to include electronic means: ‘An aggressive, intentional act carried out by a group or individual, using electronic forms of contact, repeatedly and over time against a victim who cannot easily defend him- or herself.’44 One may question the compatibility of the traditional definition of bullying with cyberbullying, especially with regard to the element of repetition. As the effects of cyberbullying are continuous or recurrent without the aggression having to be repeated, one may not need to include the element of repetition over time. Slonje and Smith discuss the different forms that repetition can take in the cyber space, such as forwarding, uploading, sending material to more than one recipient, accessing a web-page, and so on.45 The idea of repetition is therefore important only in terms of the harm caused to the victim, who feels the repeated effects of the action, and not in terms of the number of actions of the bully. One can also ask whether the intentional nature of the act should be ­included in the definition, as intention may be difficult to prove and may be 39

40 41 42 43 44

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Bonanno R & Hymel S ‘Cyberbullying and internalizing difficulties: Above and beyond the impact of traditional forms of bullying’ 42 Journal of Youth and Adolescence 685 (hereinafter ‘Cyberbullying and internalizing difficulties’). See MacKay W ‘Respectful and responsible relationships: There’s no app for that’, The Report of the Nova Scotia Task Force on Bullying and Cyberbullying, February 2012. See Bonanno & Hymel ‘Cyberbullying and internalizing difficulties’. Bonanno & Hymel ‘Cyberbullying and internalizing difficulties’ 685. Shariff ‘Cyber-dilemmas’ 459. Smith PK et al. ‘Cyberbullying: Its nature and impact in secondary school pupils’ (2008) 49 Journal of Child Psychology and Psychiatry 376 (hereafter ‘Cyberbullying: Its nature and impact’). Emphasis in original. Slonje R & Smith PK ‘Cyberbullying: Another main type of bullying?’ (2008) 49 Scandinavian Journal of Psychology 147, 154 (hereinafter ‘Cyberbullying’).

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attributable not to the original act (for example, posting a photo) but to subsequent acts (for example, commenting on the photo or sharing it widely).46 Here again, it is the harm caused to the victim that seems to precede the intention of a specific bully.47 3.2 Descriptions of Cyberbullying Descriptions of cyberbullying reveal disagreements among researchers about the extent to which cyberbullying should be distinguished from conventional bullying as a special kind of aggression rather than just a form of social or relational bullying.48 Much research demonstrates the links between bullying and cyberbullying. For example, it is said that most children who are involved in cyberbullying are also involved in conventional bullying.49 However, researchers highlight differences in the profiles of victims and perpetrators. For example, some authors note that the perpetrators in the cyber space may be victims of conventional bullying, retaliating from the comfort of their homes,50 while other research does not support that finding.51 Some authors frame this issue differently. According to Mishna et al., most cyberbullying is carried out by bully-victims, while this is said to be the smallest group involved in conventional bullying.52 Age and gender are also specifically discussed in relation to cyberbullying. Technological tools allow bullying by students who might not engage in faceto-face confrontation and physical violence, thus leading to a diversification in bullying. For example, according to some research, girls, who engage more 46

47 48

49 50

51 52

On intention, see, for example, Vandebosch H & Van Cleemput K ‘Cyberbullying among youngsters: Profiles of bullying and victims’ (2009) 11(8) New Media & Society 1; Dooley J, Pyzalski J & Cross D ‘Cyberbullying versus face-to-face bullying: A theoretical and conceptual review’ (2009) 217(4) Journal of Psychology 182, 184. See the note on perceived and actual intent in Shariff ‘Cyber-dilemmas’ 472. Compare, for example, Law DM et al. ‘The changing face of bullying: An empirical comparison between traditional and internet bullying and victimization’ (2012) 28 Computers in Human Behaviour 226 (hereafter ‘The changing face of bullying’) with Olweus D ‘Cyberbullying: An overrated phenomenon?’ (2012) 9 European Journal of Developmental Psychology 520. Smith et al. ‘Cyberbullying: Its nature and impact’. Cassidy W, Jackson M & Brown K ‘Sticks and stones can break my bones, but how can pixels hurt me? – Students’ experiences with cyber-bullying’ (2009) 30(4) School Psychology International 383, 391. Raskauskas J & Stoltz AD ‘Involvement in traditional and electronic bullying among adolescents’ (2007) 43 Developmental Psychology 564. Mishna F et al. ‘Risk factors for involvement in cyber bullying: Victims, bullies and bullyvictims’ (2012) 34 Children and Youth Services Review 63.

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in social than physical bullying, are more likely to engage in cyberbullying,53 whereas other research finds no gender difference.54 However, research shows that girls are more likely than boys to be victims of cyberbullying, which contrasts with research findings on traditional bullying.55 Age seems to be a f­urther risk factor, but in a different way than in the case of conventional ­bullying. Some have found that, as opposed to traditional bullying, cyberbullying is more prominent among older students.56 This may be due to the fact that use of the Internet and access to technology at home are risk factors, with older adolescents being more likely than younger ones to have cell phones and less restricted access to the Internet. Other risk factors hinge on the power imbalance that was discussed in relation to conventional bullying. The fact that children are perceived as different may lead to their victimisation by peers who feel more powerful than them and who gain power through bullying. However, this may be different in the context of cyberbullying. The dynamic created by cyberbullying, where the bully may act anonymously and the victim may respond without having to face his or her aggressor, could indicate that the power imbalance has less importance in the cyber space, as was also suggested by the absence of the power dynamic in cyberbullying definitions. Different dynamics of aggression and victimisation may explain different manifestations of power. For example, according to Law et al., the power differential may still be there, but in the form of technological savviness.57 Studies of the power differential point to the idea that anonymity may offer a unique method of asserting dominance and that the sense of control is essential to it; they also suggest that, for these reasons, the powerless may feel empowered and engage in cyberbullying.58 Despite the fact that cyberbullying does not happen as frequently as it may seem, the ­research indicates that its effects should be taken seriously. For example, Bonanno and Hymel have found that the effects of cyberbullying on 53 54 55

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Jackson M, Cassidy W & Brown K ‘“you were born ugly and youl die ugly too”: Cyberbullying as a relational aggression’ (2011) 17(3) in education. Smith et al. ‘Cyberbullying: Its nature and impact’. See Li Q ‘Bullying in the new playground: Research into cyberbullying and cyber victimisation’ (2007) 23(4) Australasian Journal of Education Technology 435; Slonje & Smith ‘Cyberbullying’. See Smith et al. ‘Cyberbullying: Its nature and impact’; Shariff S & Hoff D ‘Cyber bullying: Clarifying legal boundaries for school supervision in cyberspace’ (2007) 1(1) International Journal of Cyber Criminology 76 (hereafter ‘Cyber bullying: Clarifying legal boundaries’). See Law DM et al. ‘The changing face of bullying’ 227. Brown K, Jackson M & Cassidy W ‘Cyber-bullying: Developing policy’ 6.

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s­ ymptomatology and suicidal ideation are independent of the effects of traditional forms of ­bullying and contribute uniquely to these problems.59 Yet some authors take a more tempered view of its impact on victims.60 For instance, Salmivalli et al. found that cyberbullying, when it occurs in isolation, has a negligible chance of contributing to the development of psychosocial problems, including depression.61 The authors found instead that the two forms of bullying generally overlap with, and reinforce, each other. Many researchers explain the pervasive nature of cyberbullying by referring to its anonymity, lasting effects, and wide audience.62 Offensive material in the cyber space is virtually impossible to eliminate completely and follows victims to the home, which used to be a safe haven from conventional bullying. These characteristics can result in more profound impacts on the victim of cyberbullying than traditional bullying. According to Mishna, Saini and Solomon, anonymity is a central feature of cyberbullying, and causes more distress for the victimised child.63 Another possible difference with conventional bullying is that while traditional forms of bullying are physically linked with school, including travel to and from it, cyberbullying happens mostly outside of school. Nevertheless, research shows that the repercussions of cyberbullying continue at school, with cyberbullies and victims generally being known to each other in the school environment.64 This further corroborates the interrelationship between the two types of bullying. The challenge that is noted in this context, however, is supervision. While increased supervision is recommended to avoid bullying on school grounds, the absence of adult supervision is much more difficult to overcome when abuse happens on cell phones and computers outside school. This suggests the need to give a much more important role to children and youth, parents and the community at large, in addressing this type of bullying.

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Bonanno R & Hymel S ‘Cyberbullying and internalizing difficulties’. Smith et al. ‘Cyberbullying: Its nature and impact’. Salmivalli C, Sainio M & Hodges EVE ‘Electronic victimization: Correlates, antecedents, and consequences among elementary and middle school students’ (2013) 42(4) Journal of Clinical and Adolescent Psychology 442. See, for example, Bonanno R & Hymel S ‘Cyberbullying and internalizing difficulties’. See also Shariff S & Hoff D ‘Cyber bullying: Clarifying legal boundaries’. Mishna F, Saini M & Solomon S ‘Ongoing and online: Children and youth’s perceptions of cyber bullying’ (2009) 31 Children and Youth Services Review 1222. Gradinger P, Strohmeier D & Spiel C ‘Traditional bullying and cyberbullying: Identification of risk groups for adjustment problems’ (2009) 217(4) Journal of Psychology 205.

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Analysis based on Children’s Rights

While there has been much work on bullying and specifically cyberbullying, children’s rights are not generally considered in relation to these issues. The following analysis demonstrates that more attention to children’s rights is warranted, as these can help to inform our understanding of the issues, the ­approaches to them, and the actors involved. To proceed, a brief introduction reviews the main tenets of child rights, based on the crc; thereafter, an ­analysis is presented, based on reviewing some of the findings from the literature in the light of child rights principles. 4.1 Background on Children’s Rights Over the past century there has been a global preoccupation with protecting children, and international law on the rights of the child has developed since the Geneva Declaration of 1924.65 The 1989 crc applies to everyone under the age of 18 unless the age of majority is attained earlier (art. 1). It is the first international treaty to include the range of human rights in one instrument, these being economic, social and cultural rights as well as civil and political rights. More specifically, the crc recognises that children have rights to protection, provision and participation – these are known as ‘the three P’s’.66 The crc thus aims to recognise the child’s vulnerability, advance the child’s development needs, and reaffirm the child’s fundamental rights and freedoms. The treaty’s international monitoring body, the un Committee on the Rights of the Child (hereafter the Committee), has identified four articles as general principles due to their fundamental importance to all children’s rights, namely, non-discrimination (art. 2); best interests of the child (art. 3); life, survival and development (art. 6); and respect for the views of the child (art. 12).67 These provisions are significant in the interpretation and implementation of all other child rights. In addition, according to article 5: States Parties shall respect the responsibilities, rights and duties of p ­ arents or, where applicable, the members of the extended family or community 65

66 67

League of Nations (1924), Geneva Declaration of the Rights of the Child, Adopted 26 September, available at http://www.un-documents.net/gdrc1924.htm (accessed 19 January 2015). Howe B & Covell K ‘Child Poverty in Canada and the rights of the child’ (2003) 25(4) Human Rights Quarterly 1067. un Committee on the Rights of the Child General Guidelines Regarding the Form and Contents of Periodic Reports (1996) un Doc. CRC/C/58 (hereinafter ‘General Guidelines’).

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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. Following crc ratification or accession, states are obliged to implement the provisions in accordance with international law. Other actors within the state and at international and local levels should contribute to the promotion and protection of these rights. The comprehensive, multidisciplinary and interdependent nature of children’s rights means that they are pertinent to all issues related to children’s lives and apply to every child and group of children. Accordingly, children’s rights are relevant to bullying and cyberbullying. Some writers on the subject recognise the relevance of child rights. For instance, Olweus and Limber define bullying as an issue of human rights due to the rights violations and long-term adverse effects on young people;68 Smith, too, sees bullying and children’s rights as interconnected.69 Nonetheless, more analysis is required to understand the potential and the implications of a child rights-based approach to addressing bullying. 4.2 Child Rights Analysis This analysis of the literature related to bullying and cyberbullying is organised according to the following child rights, which serve as a useful analytical lens:70 protection from violence (art. 19 crc) and the aforementioned crc general principles. While we only briefly examine these specific provisions, it is noted that there is a wider spectrum of relevant provisions that can and should be taken into consideration in future analyses. These include crc rights to education (arts. 28 and 29); respect for the responsibilities, rights and duties of parents and caregivers (art. 5); freedom of expression (art. 13); freedom from interference with privacy and correspondence (art. 16); access to information (art. 17); a ‘full and decent life,’ including ‘active participation’ of a child with disabilities (art. 23); right to the highest attainable standard of health (art. 24); appropriate measures for recovery and social reintegration after suffering abuse (art. 39); and the right of a child accused of or convicted of a criminal offence to be treated with dignity and worth with the aim of reintegration and contribution to society (art. 40). 68 69 70

Olweus & Limber ‘Bullying in school’. Smith ‘Bullying and harassment’. See further Collins T The Monitoring of the Rights of the Child: A Child Rights-based Approach (PhD law thesis, Queen Mary & Westfield College, University of London, 2007).

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4.2.1 Protection from Violence Article 19 of the crc protects children from ‘all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child’. The various forms of violence against children include, according to the Committee, ‘physical, psychological and sexual violence, often by bullying, exerted by children against other children, frequently by groups of children’.71 The Committee also specifically recognises ‘mental violence’, which ‘is often described as psychological maltreatment, mental abuse, verbal abuse and emotional abuse or neglect and this can include: […] Psychological bullying and hazing by adults or other children, including via information and communication technologies (icts) such as mobile phones and the Internet (known as “cyberbullying”)’.72 The Committee urges that violence must be taken seriously because it ‘not only harms a child’s physical and psychological integrity and well-being in the immediate term, but often has severe impact on his or her development, education and social integration in the medium and long term’.73 While the harmful consequences of bullying are well recognised in the literature, the crc adds important elements to the analysis of bullying. The first is the idea that violence against children is a violation of children’s human rights. Jaap Doek, former Committee chair, explains: The fundamental change the crc brought to this field was that violence against children is not only morally and socially unacceptable, but a violation of her/his fundamental right to respect for and protection of her/ his inherent human dignity and physical and mental integrity and to equal protection under the law.74 According to the Committee, ‘[t]he concept of dignity requires that every child is recognized, respected and protected as a rights holder and as a unique and valuable human being with an individual personality, distinct needs, interests and privacy’.75 The concept of dignity seems to be absent from leading analyses 71

72 73 74 75

un Committee on the Rights of the Child, General Comment No. 13 on the right of the child to freedom from all forms of violence (2011) un Doc. CRC/C/GC/13, 11 (hereinafter General Comment No. 13). un Committee on the Rights of the Child, General Comment No. 13, 9. un Committee on the Rights of the Child, General Comment No. 13, 11. Doek J ‘The crc 20 years: An overview of some of the major achievements and remaining challenges’ (2009) 33 Child Abuse & Neglect 771, 776. un Committee on the Rights of the Child, General Comment No. 13 17.

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about ‘bullies’ and ‘victims’. These efforts can get locked in stereotypical descriptions that do not take into account the child’s individuality in a ­situation of lived violence. Foregoing the concept of dignity may also lead to punitive approaches that exacerbate violence and/or to stigmatising the ‘victim’ as helpless instead of recognising him or her as a rights-bearing individual.76 The second element is the recognition that there is a special requirement to protect children when they are in the care of adults – all those with recognised responsibility for the safety, development and well-being of the child – as well as when they are unsupervised.77 The crc therefore directs us to explore the roles of various actors who are responsible for children’s well-being. Considering children as ‘bullies’ and ‘victims’ gives children the main role, and may leave out analysis of the roles and responsibilities of important actors who are adults.78 4.2.2 Non-discrimination The principle of non-discrimination is directly relevant to research and responses to bullying and cyberbullying. Article 2 of the crc provides that states must ensure that all children within their jurisdiction enjoy their rights and that no child should suffer discrimination based on race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability or birth or other status. In essence, this means that all children, with their individual and group identities, should be respected. We consider the principle of non-discrimination as relevant to the dyadic categorisation of the children involved, as the labels of ‘bullies’ and ‘victims’ ignore the context and influences around children involved in bullying. While the literature already recognises the complexity of bullying and cyberbullying, too little attention is paid to existing discrimination against certain groups of children, which may partly explain their involvement in bullying. Attention also needs to be paid to the potentially discriminatory consequences of being labelled a ‘bully’ or a ‘victim’. Existing research that draws attention to the way in which power dynamics relate to certain characteristics of the victim such as race, sex or disability certainly help to advance the principle of non-discrimination. The same can be said of research that focuses on specific groups or individual characteristics, such as literature identifying the particular challenges that girls, boys or lgbt young people experience. However, this literature tends to address only certain 76 77 78

un Committee on the Rights of the Child, General Comment No. 13, 11, 17. un Committee on the Rights of the Child, General Comment No. 13, 13. un Committee on the Rights of the Child, General Comment No. 13, 11.

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aspects of issues related to non-discrimination. Greater attention needs to be given to the place of discrimination in the lives of all children involved in bullying situations, as well as to the role of the terminology used and approaches adopted. In other words, do research and responses help or hinder the application of children’s rights without discrimination? 4.2.3 Best Interests The best interests of the child (art. 3 crc) shall be ‘a primary consideration’ in all actions concerning children, ensuring protection and care and all appropriate measures. Thus, the child – rather than politics, financial constraints, or disciplinary boundaries and so on – should be the focus of efforts. This demands that attention should be given to how we understand and respect the child; to the analysis of rights-respecting approaches; and to the need for child rights awareness and orientation as well as positive government contributions. Research work to date generally reflects understandings shaped by the ‘disciplinary boxes’. For example, psychology dictates attention to the ­psychological profile of the ‘bully’ and ‘victim’. Rather than focusing on the child in ­accordance with the best-interests principle, research and r­esponses to bullying and ­cyberbullying usually reflect psychological emphases, ­neglecting the social and political underpinnings of bullying.79 The limitations of any particular perspective do not serve children’s best interests in terms of the understanding that is engendered. Similarly, children’s rights, because they are articulated in law, tend to be regarded as having mainly legal relevance. Instead, these rights require multidisciplinary, holistic and comprehensive approaches to children that include a range of actors, including young people themselves.80 4.2.4 Maximum Survival and Development The right to survival and to development (art. 6 crc) should be ensured ‘to the maximum extent possible’. ‘Development’ should be interpreted broadly as involving not only physical health but ‘mental, spiritual, moral, psychological and social development’.81 This principle requires that attention be given 79

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Meyer EJ ‘A feminist reframing of bullying and harassment: Transforming schools through critical pedagogy’ (2008) 43(1) McGill Journal of Education 33; Walton G ‘“Bullying widespread”: A critical analysis of research and public discourse on bullying’ (2005) 4(1) Journal of School Violence 91; Walton G ‘The problem trap: Implications of policy archaeology methodology for anti-bullying policies’ (2010) 25(2) Journal of Education Policy 135. See Collins TM ‘International child rights in national constitutions: Good sense or nonsense for Ireland?’ (2013) 28(4) Irish Political Studies 591. un Committee, General Guidelines 40.

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to the child over time, not only at one point in his or her life. Impediments, including violence, should be taken seriously; differences between children as well as groups of children should be recognised and respected. The research on bullying is clearly concerned with the survival and development of children, who are victims of school violence; the attention to the various forms of harm that are caused speaks to this priority. Moreover, giving regard to the particular identities of children in the research, including their age, gender, disability, lgbt and other statuses, is helpful in identifying differences that may hinder children’s maximum survival and development. Similarly, as noted above, researchers’ increasing consideration of relationships makes a valuable contribution to the implementation of the child’s right to development. Considering that human rights emphasise relationships between individuals,82 that violence may be viewed as a relationship problem, and that relationships have important significance for the child’s maximum development, greater efforts are needed to examine and redress the spheres of influence in children’s lives, including school personnel, parents, friends and others. Interpersonal influences and factors, such as economic stressors or family violence and breakdown, have an impact on children’s development, and may lead to violence between children. Caregivers play an especially important role in supporting children’s development, which means they should be included in research about, and responses to, bullying and cyberbullying. 4.2.5 Views of the Child Article 12 of the crc requires that, in all matters concerning the child ‘who is capable of forming his or her own views[,] the right to express those views freely’ shall be given ‘due weight in accordance with the age and maturity of the child’. Children, including the marginalised and vulnerable, should also receive support to express their views.83 This principle is explored through discussion of the importance of the views of the child in research. It is commendable that most researchers involve young people in their work, for example through focus groups, surveys and questionnaires. Involving children in projects that concern them contributes to determining their best interests in the context of exploring definitions and responses to bullying 82

83

Pearson L ‘From strength and strength: Children’s and women’s rights over the lifecycle’ Florence Bird Lecture, Carleton University, Ottawa, 8 March 2012, 33(2) Child & Youth Services 92–103; also available at http://www.landonpearson.ca/uploads/6/0/1/4/6014680/ the_florence_bird_lecture.pdf (accessed 29 January 2015). un Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009) un Doc CRC/C/GC/12.

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and cyberbullying. It is important to make sure that all children are able to participate, and special measures may have to be taken to reach those who have disabilities, who experience language barriers, are young, or are part of a marginalised group. In this analysis, we have sought to demonstrate not only that child rights are relevant to bullying but that it is important for researchers and governments to understand and respect these rights. With the application of child rights, we are likely to better understand situations of bullying and cyberbullying and the roles of different actors. Consequently, it is important that research and action be informed by children’s voices, by attention to children’s developmental needs, by non-discrimination, and by a focus on the best interests of particular children. Children’s rights require the adoption of holistic and comprehensive approaches that respect all the rights in the crc and recognise that violence threatens children’s rights to survival, dignity, well-being, health, development, participation and non-discrimination.84 In addition, the un Committee advocates for national standards, and clear legal definitions that include all forms of violence.85 5 Conclusion The foregoing literature review gives rise to several observations. First, there is a wealth of research and valuable findings that allow us to better understand the phenomenon of bullying. However, empirical studies do not have universal application, given their many conflicting findings and methodological limitations, and they are not holistic, as most of them are concentrated in the field of psychology and do not reflect on the social and political underpinnings of bullying. Secondly, some criteria that have been determined to be essential to a definition of bullying seem problematic when applied to cyberbullying, especially the elements of repetition, intention and power dynamics. This is linked to the third issue, which concerns limitations in the focus applied to the bully and the victim. It seems that much of the research has been conducted from the viewpoint of the bullying action, describing the bully and the aggression. Regarding the victim, research is concentrated on the consequences of bullying, highlighting mental health problems or lower academic achievement. There is little discussion on the consequences for the bully or other members 84 85

un Committee on the Rights of the Child, General Comment No. 13. un Committee on the Rights of the Child, General Comment No. 13.

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of the school community. The dyadic relationship that focuses on the aggression by one party and the harm caused to the other does not allow us to grasp the problem in a holistic way. Fourthly, the definitions of bullying and cyberbullying, as well as the various categorisations of harmful actions, make it difficult to treat school violence in a comprehensive way. Cyberbullying and bullying are certainly related, and cyberbullying clearly includes characteristics that are very particular to relations in the cyber space. Beyond arguments about the links between the two phenomena, it is important to include attention to rights – including to life, development, and well-being of all children involved – and the responsibilities of those who are connected to these children. A brief analysis of the crc provides valuable points that should be considered when examining bullying and other types of school violence. Article 19, on protecting children from violence, and the General Comment of the un Committee point to the importance of treating bullying as a violation of children’s right to be protected from all forms of violence when in the care of adults, be these adults educators, parents or others responsible for the care of the child. An analysis based on the four general principles of the crc suggests that the terms ‘bully’ and ‘victim’ may not allow us to fully consider the potential violations of children’s rights that lead to violence in school and the rights violations that are caused by such violence. Moreover, focus on certain prohibited grounds for discrimination tends to be limited to the power differential between bully and victim, neglecting the place of discrimination in the lives of the children involved. While researchers have learned more about the dimensions of bullying and cyberbullying, it is now time for further progress, building on the existing knowledge. This exploratory research demonstrates the limits of current approaches to bullying and leads us to explore a larger and more holistic approach that is embedded in children’s rights. Children’s rights can provide many benefits as a guiding tool, a philosophy to frame what we are doing, a common language, and a means of expanding our understanding of the context and the responsibilities of those within it. As this chapter is limited in scope to focusing on concepts and introducing the need to consider child rights when discussing school violence, further research is required. In particular, current anti-bullying laws, policies and programmes should be methodically analysed. It is important to find out what solutions are developed in practice and what the various actors involved in these developments have to say about priorities and challenges. It is anticipated that our thorough exploration, involving textual analysis and interviews with youth and other stakeholders, will inform the development of a child rights-based approach to anti-violence efforts in schools.

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Atlas R & Pepler D ‘Observations of bullying in the classroom’ (1998) 92(2) The Journal of Educational Research 86–99. Blain-Arcaro C et al. ‘Contextual attributes of indirect bullying situations that influence teachers’ decisions to intervene’ (2012) 11 Journal of School Violence 226–45. Bonanno R & Hymel S ‘Cyberbullying and internalizing difficulties: Above and beyond the impact of traditional forms of bullying’ 42 Journal of Youth and Adolescence 685–97. Brown K, Jackson M & Cassidy W ‘Cyber-bullying: Developing policy to direct responses that are equitable and effective in addressing this special form of bullying’ (2006) 57 Canadian Journal of Educational Administration and Policy. Cassidy W, Jackson M & Brown K ‘Sticks and stones can break my bones, but how can pixels hurt me? Students’ experiences with cyber-bullying’ (2009) 30(4) School Psychology International 383–402. Collins TM ‘International child rights in national constitutions: Good sense or nonsense for Ireland?’ (2013) 28(4) Irish Political Studies 591–619. Collins TM ‘The role and implications of children’s rights for research about children’ (2014) International Conference 25 years Convention on the Rights of the Child (CRC), Department of Child Law, Leiden University, 18–19 November 2014. Craig W & Pepler D ‘Understanding bullying: From research to practice’ (2007) 48(2) Canadian Psychology 86–93. Daley A et al. ‘Traversing the margins: Intersectionalities in the bullying of lesbians, gay, bisexual and transgender youth’ (2007) 9 Journal of Gay & Lesbian Social Services 9–29. Doek J ‘The CRC 20 years: An overview of some of the major achievements and remaining challenges’ (2009) 33 Child Abuse & Neglect 771–82. Dooley J, Pyzalski J & Cross D ‘Cyberbullying versus face-to-face bullying: A theoretical and conceptual review’ (2009) 217(4) Journal of Psychology 182–8. Goldbaum S et al. ‘Developmental trajectories of victimization: Identifying risk and protective factors’ (2003) 19(2) Journal of Applied School Psychology 139–56. Gradinger P, Strohmeier D & Spiel C ‘Traditional bullying and cyberbullying: Identification of risk groups for adjustment problems’ (2009) 217(4) Journal of Psychology 205–13. Howe B & Covell K ‘Child Poverty in Canada and the rights of the child’ (2003) 25(4) Human Rights Quarterly 1067–87.

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Jackson M, Cassidy W & Brown K ‘“you were born ugly and youl die ugly too”: Cyberbullying as a relational aggression’ (2011) 17(3) in education 68–82. Law DM et al. ‘The changing face of bullying: An empirical comparison between traditional and internet bullying and victimization’ (2012) 28 Computers in Human Behaviour 226–32. Li Q ‘Bullying in the new playground: Research into cyberbullying and cyber victimisation’ (2007) 23(4) Australasian Journal of Education Technology 435–54. MacKay W ‘Safe and inclusive schooling – expensive … Quality education – priceless. For everything else there are lawyers’ (2008) 18(1) Education Law Journal 21–55. Merrell KW et al. ‘How effective are school bullying intervention programs? A meta analysis of intervention research’ (2008) 23(1) School Psychology Quarterly 26–42. Meyer EJ ‘A feminist reframing of bullying and harassment: Transforming schools through critical pedagogy’ (2008) 43(1) McGill Journal of Education 33–48. Mishna F et al. ‘Bullying of lesbian and gay youth: A qualitative investigation’ (2009) 39 The British Journal of Social Work 1598–1614. Mishna F et al. ‘Risk factors for involvement in cyber bullying: Victims, bullies and bully-victims’ (2012) 34 Children and Youth Services Review 63–70. Mishna F, Saini M & Solomon S ‘Ongoing and online: Children and youth’s perceptions of cyber bullying’ (2009) 31 Children and Youth Services Review 1222–228. Olweus D ‘Bullying at school and later criminality: Findings from three Swedish community samples of males’ (2011) 21 Criminal Behaviour and Mental Health 151–56. Olweus D ‘Bully/victim problems in school: Knowledge base and an effective intervention program’ (1997) 18(2) The Irish Journal of Psychology 170–90. Olweus D ‘Cyberbullying: An overrated phenomenon?’ (2012) 9 European Journal of Developmental Psychology 520–38. Olweus D & Limber S ‘Bullying in school: Evaluation and dissemination of the Olweus Bullying Prevention Program’ (2010) 80(1) American Journal of Orthopsychiatry 124–34. Pearson L ‘From strength and strength: Children’s and women’s rights over the lifecycle’, Florence Bird Lecture, Carleton University, Ottawa, 8 March 2012, 33(2) Child & Youth Services 92–103. Pepler D ‘Bullying interventions: A binocular perspective’ (2006) 15(1) Journal of the Canadian Academy of Adolescent Psychiatry 16–20. Pepler D et al. ‘A developmental perspective on bullying’ 32 Aggressive Behaviour 376–84. Raskauskas J & Stoltz AD ‘Involvement in traditional and electronic bullying among adolescents’ (2007) 43 Developmental Psychology 564–75. Richard JF, Schneider BH & Mallet P ‘Revisiting the whole-school approach to bullying: Really looking at the whole school’ (2011) 33(3) School Psychology International.

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Salmivalli C ‘Is there an age decline in victimization by peers at school?’ (2002) 44(3) Educational Research 269–77. Salmivalli C, Sainio M & Hodges EVE ‘Electronic victimization: Correlates, antecedents, and consequences among elementary and middle school students’ (2013) 42(4) Journal of Clinical and Adolescent Psychology 442–53. Shariff S ‘Cyber dilemmas in the new millennium: School obligations to provide student safety in a virtual school environment’ (2005) 40(3) McGill Journal of Education 457–77. Shariff S & Hoff D ‘Cyber bullying: Clarifying legal boundaries for school supervision in cyberspace’ (2007) 1(1) International Journal of Cyber Criminology 76–118. Slonje R & Smith PK ‘Cyberbullying: Another main type of bullying?’ (2008) 49 Scandinavian Journal of Psychology 147–54. Smith PK ‘Bullying and harassment in schools and the rights of children’ (2000) 14 Children and Society 294–303. Smith PK & Ananiadou K ‘The nature of school bullying and the effectiveness of school-based interventions’ (2003) 5(2) Journal of Applied Psychoanalytic Studies 189–209. Smith PK et al. ‘Cyberbullying: Its nature and impact in secondary school pupils’ (2008) 49 Journal of Child Psychology and Psychiatry 376–85. Ttofi MM, Farrington DP & Losel F ‘School bullying as a predictor of violence later in life: A systematic review and meta-analysis of prospective longitudinal studies’ (2012) 17(5) Aggressive and Violent Behaviour 405–18. Vaillancourt T, Hymel S & McDougall P ‘Bullying is power: Implications for school-based intervention strategies’ (2003) 19(2) Journal of Applied School Psychology 157–76. Vandebosch H & Van Cleemput K ‘Cyberbullying among youngsters: Profiles of bullying and victims’ (2009) 11(8) New Media & Society 1349–71. Walton G ‘“Bullying widespread”: A critical analysis of research and public discourse on bullying’ (2005) 4(1) Journal of School Violence 91–118. Walton G ‘The problem trap: Implications of policy archaeology methodology for antibullying policies’ (2010) 25(2) Journal of Education Policy 135–50.

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MacKay W Respectful and Responsible Relationships: There’s No App for That The Report of the Nova Scotia Task Force on Bullying and Cyberbullying, February 2012, available at http://www.ednet.ns.ca/taskforcereport.shtml (accessed 20 January 2015).

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Collins T The Monitoring of the Rights of the Child: A Child Rights-based Approach (PhD law thesis, Queen Mary & Westfield College, University of London, 2007).

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League of Nations (1924), Geneva Declaration of the Rights of the Child, adopted 26 September, available at http://www.un-documents.net/gdrc1924.htm (accessed 19 January 2015). UN Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009) UN Doc CRC/C/GC/12. UN Committee on the Rights of the Child, General Comment No. 13 on the right of the child to freedom from all forms of violence (2011) UN Doc. CRC/C/GC/13 UN Committee on the Rights of the Child, General Guidelines Regarding the Form and Contents of Periodic Reports (1996) UN Doc. CRC/C/58. UN Convention on the Rights of the Child (1989), adopted by UN General Assembly on 20 November 1989, UN Doc. A/RES/44/25, entered into force 2 September 1990. United Nations ‘United Nations Treaty Collection: Chapter IV Human Rights, 11. Convention on the Rights of the Child’, New York, 20 November 1989.

chapter 27

Child Rights as a Basis for the Regulation of Food Marketing: The Role of the un Convention on the Rights of the Child Katharina Eva Ó Cathaoir1 Abstract This chapter analyses the extent to which the rights to health and food under the crc can guide the restriction of marketing of high fat, salt or sugar (hfss) foods to children. hfss food marketing is considered problematic as it is a contributory factor to increasingly high levels of obesity in Europe and beyond. Recent advances in digital technology raise new challenges, calling for an innovative approach, with experiences in the eu, including the uk and Sweden, highlighting the complexity of regulation. The author analyses the approach of the crc Committee, the Special Rapporteurs on the Right to Food and Health, the who and civil society with a view to establishing a ‘child rights’ approach to hfss marketing. In light of the neglect of this issue and the crc Committee’s unique position, it is recommended that the Committee take an active role in emphasising hfss marketing as a rights concern that is contrary to the child’s rights to health and food, and best interests. Framing freedom from hfss marketing as a right has the potential to transform this public health issue into a legal responsibility that requires action from States Parties.

1 Introduction Childhood obesity is a global health epidemic which carries an increased risk of cardiovascular diseases, diabetes, musculoskeletal disorders, and certain types of cancer.2 Also of concern is that children with obesity experience

1 This work is supported by the research programme ‘Governing Obesity’, funded by the University of Copenhagen Excellence Programme for Interdisciplinary Research (http://www .go.ku.dk). My thanks go to my colleagues in WP1, in particular Professor Mette Harlev, for comments and encouragement. All errors are my own. 2 ‘Why does childhood obesity and overweight matter?’ World Health Organisation; oecd ­Directorate for Employment Labour and Social Affairs Obesity Update (2014).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_028

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stigmatisation, bullying and social isolation.3 The causes of childhood obesity are multifaceted but include poor diet and lack of physical exercise, with media and technology recognised as contributory factors.4 Food marketing has emerged as an area of concern, as a number of studies have shown that children around the world are exposed to thousands of television advertisements for high fat, salt or sugar (hfss) foods each year. This can lead to increased snacking, and impact on future purchase requests as well as independent purchases.5 Furthermore, marketing practices increasingly harness digital technologies to extend the scope of advertising campaigns.6 This chapter aims to analyse and assess the extent to which the un Convention on the Rights of the Child (crc) can inform the regulation of hfss food marketing to children. In general, legislatures have been cautious to limit the marketing of unhealthful food to children. A child rights approach to food marketing to children has been suggested, but inadequately explored.7 Rights-based approaches have the potential to transform society’s perspective on public health issues from a private problem to a legal, governmental responsibility.8 Rights rely on law as a basis, and not morals or beneficence.9 3 Rees RW et al. ‘“It’s on your conscience all the time”: A systematic review of qualitative studies examining views on obesity among young people aged 12–18 years in the uk’ (2014) 4 bmj open. 4 Lobstein T et al. ‘Obesity in children and young people: A crisis in public health’ (2004) 5 Obesity Reviews 4; Lobstein T & Dibb S ‘Evidence of a possible link between obesogenic food advertising and child overweight’ (2005) 6 Obesity reviews 203. 5 Kelly B et al. ‘Television food advertising to children: A global perspective’ (2010) 100 American Journal of Public Health 1730; Harris JL et al. ‘Priming effects of television food advertising on eating behavior’ (2009) 28 Health psychology 404; Coon KA & Tucker KL ‘Television and children’s consumption patterns. A review of the literature’ (2002) 54 Minerva pediatrica 423; Linn S & Novosat CL ‘Calories for sale: Food marketing to children in the twenty-first century’ (2008) 615 The annals of the American Academy of Political and Social Science 133. 6 Montgomery KC et al. ‘The new threat of digital marketing’ (2012) 59 Pediatric clinics of North America 659. 7 Swinburn B et al. ‘The “Sydney Principles” for reducing the commercial promotion of foods and beverages to children’ (2008) 11 Public health nutrition 881; Ingleby R et al. ‘uncroc and the prevention of childhood obesity: The right not to have food advertisements on television’ (2008) 16 Journal of law and medicine 49; Livingstone S & O’Neill B ‘Children’s rights online: Challenges, dilemmas and emerging directions’ in Van Der Hof S et al. (eds) Minding Minors Wandering the Web: Regulating Online Child Safety (2014) 19–38; Waterston T & Goldhagen J ‘Why children’s rights are central to international child health’ (2007) 92 Archives of Disease in Childhood 176 . 8 Simpson C & Simpson B ‘Childhood obesity and the importance of rights discourse: A way forward for public health practitioners’ (2004) 4 Environmental Health 53. 9 uncrc Committee, General Comment No. 7 (2005) on implementing child rights in early childhood UN/CRC/GC/7.

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They offer all States Parties a basic framework which, if fully implemented, can provide children with universal standards of protection. On the other hand, it has been argued that state preoccupation with body size is contrary to a rights approach.10 This article focuses on the responsibilities of states and businesses – not whether the term ‘obesity’ is ‘rights’ appropriate. The chapter is divided into six sections. Section 2 outlines the evidence linking advertisement of hfss foods to childhood obesity, with particular reference to digital technology. Section 3 explores existing rights approaches to food marketing to children emanating from the United Nations Committee on the Rights of the Child (crc Committee), the Special Rapporteurs on the Right to Health and on the Right to Food, ‘World Obesity’ and the World Health Organisation (who). In Section 4, legislation from the European Union (eu), United Kingdom (uk) and Sweden is analysed from a child rights perspective. Sections 5 and 6 recommend that the crc Committee take a number of actions to increase their efforts to protect child rights through the regulation of marketing. 2

Food Marketing to Children

The who has commissioned an extensive study on the effect of food marketing on children. It concludes that food marketing which focuses on children is widespread, with hfss foods most heavily advertised.11 There is strong evidence that food promotion influences food choices at category and brand level.12 Food promotion can have an impact upon a child’s nutritional knowledge and perception of a healthy diet; influence food preference, purchasing choice and requests, consumption behaviours and diet-related health status; and act as a significant independent determinant of food behaviours and health status.13 Food promotion typically makes use of premium offers, promotional characters, nutrition and health-related claims, the theme of taste and the emotional appeal of fun.14 10 11 12 13 14

O’Hara L & Gregg J ‘Human rights casualties from the “War on Obesity”: Why focusing on body weight is inconsistent with a human rights approach to health’ (2012) 1 Fat Studies. Cairns G et al. ‘Systematic reviews of the evidence on the nature, extent and effects of food marketing to children. A retrospective summary’ (2013) 62 Appetite 209. Cairns G et al. ‘Systematic reviews of the evidence on the nature, extent and effects of food marketing to children’ (2013) Appetite. Cairns G et al. ‘Systematic reviews of the evidence on the nature, extent and effects of food marketing to children’ (2013) Appetite. Jenkin G et al. ‘A systematic review of persuasive marketing techniques to promote food to children on television’ (2014) 15 Obesity Reviews.

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While television commercials remain the most popular marketing medium, digital technology, in particular internet-enabled devices, are increasingly used as a promotional tool.15 For example, internet advertising revenues in the United States were measured at $23.1 billion for the first six months of 2014, an increase of 15 per cent in spending from the first six months of 2013.16 The internet has brought new potential for the level and reach of marketing, given its accessibility and low cost compared with traditional media.17 Furthermore, children access a variety of media: for example, an eu survey from 2005/2006 found that (in the opinion of their parents) 60 per cent of 6–10 year olds use the internet, compared with 86 per cent of 15–17 year olds.18 Using the uk as an example, research estimates that one in three children (aged 5–15) has their own tablet; 43 per cent use it to go online; 71 per cent of 12–15 year olds are on social media and 43 per cent of parents feel their children know more about the internet than they do.19 Technology brings inestimable benefits to child education and development. However, it can also expose children to sophisticated advertising strategies, from which their parents may lack the insight to protect them. It appears that children find it more difficult to identify advertisements on websites than traditional media,20 especially where ‘stealth’ marketing results in advertisements being difficult to distinguish from editorial content. Multiple platforms allow companies to take a cross-media approach whereby children are targeted with the same message through different media, making it difficult to identify the impact of a single medium.21 Due to its interactive nature, digital marketing may also tap into emotional or unconscious choices,22 allowing 15

Cairns G et al. ‘Systematic reviews of the evidence on the nature, extent and effects of food marketing to children’ (2013) Appetite. 16 ‘Internet Advertising Revenue Half-Year Report’ Interactive Advertising Bureau (2014). 17 Cairns G et al. ‘Systematic reviews of the evidence on the nature, extent and effects of food marketing to children’ (2013) Appetite. 18 Flash Eurobarometer upon the request of Directorate General Information Society and Media Towards a Safer Use of the Internet for Children in the eu – A Parents’ Perspective Analytical Report (2008). 19 Ofcom Children and Parents: Media Use and Attitudes Report 2014 (2014). 20 Mallinckrodt V & Mizerski D ‘The effects of playing an advergame on young children’s perceptions, preferences, and requests’ (2007) 36 Journal of Advertising 87. 21 Advertising Education Forum Digital Marketing and Advertising to Children: A Literature Review (2012). 22 Center for Digital Democracy Food marketing in the digital age: A conceptual framework and agenda for research (2011).

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more engagement than traditional media.23 By using cookies, marketers are able to gather data on user preferences and thereby suit advertisements to the unique user.24 Marketing to children can be considered unethical since, depending on their age and maturity, children cannot understand the intention of commercial communications. Therefore, some states set age limits at which companies may target children, with 12 years sometimes suggested as a suitable minimum age.25 However, children differ in their stages of development and, consequently, their ability to discern the intentions of advertisements.26 Without an adequate understanding of the aim of an advertisement, children may be unable to evaluate it in the same manner as an adult.27 For example, Roedder John suggests that it is only in the reflective stage (age 11–16) that children are able to understand the persuasive intent of marketing as they grasp abstract ideas and question what they are told.28 On the other hand, Rozendaal argues that there is insufficient evidence that once children understand advertising, they will not be impacted.29 In the light of this, without regulation companies may take advantage of children’s credulity and inexperience. By contrast, some dispute the effect of marketing generally, as well as the evidence linking obesity and food marketing, arguing that the regulation of marketing is premature in the absence of more compelling evidence.30 This position is supported by the fact that it is difficult to isolate individual causal factors in relation to obesity, given its multifaceted nature. However, due to rising concern about childhood obesity levels, the hfss food ­industry is 23

24 25 26 27 28 29 30

Bailey R et al. ‘How avatar customizability affects children’s arousal and subjective presence during junk food-sponsored online video games’ (2009) 12 Cyberpsychology & behavior 277. ‘What is a cookie?’ All About Cookies. Ali M et al. ‘Young children’s ability to recognize advertisements in web page designs’ (2009) 27 The British Journal of Developmental Psychology 71. Kunkel D ‘Commentary mismeasurement of children’s understanding of the persuasive intent of advertising’ (2010) 4 Journal of Children and Media 109. Advertising Education Forum Digital Marketing and Advertising to Children: A Literature Review (2012) 45. Roedder John D ‘Consumer socialization of children: A retrospective look at twenty‐five years of research’ (1999) 26 Journal of Consumer Research 183. Rozendaal E et al. ‘Reconsidering advertising literacy as a defense against advertising ­effects’ (2011) 14 Media Psychology 333 . Brownell KD et al. ‘Personal responsibility and obesity: A constructive approach to a ­controversial issue’ (2010) 29 Health Affairs 378.

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i­ ncreasingly declaring itself open to reforming its approach to children through self-regulation.31 3

International Child Rights

3.1 The Rights to Health and Food under the crc In terms of the crc, parents/guardians are under the primary obligation to ensure their children’s health and development.32 Secondary to this, the state shall assist and provide facilities and services.33 Thus, the crc recognises that some factors are beyond parental control and means, and requires States Parties to pursue the implementation of children’s rights through ‘all appropriate legislative, administrative and other measures’.34 In the case of economic, social and cultural rights, such as the rights to food and health, states shall do so ‘to the maximum extent of their available resources and in the framework of international co-operation’.35 The crc Committee has interpreted state obligations for socioeconomic rights to include the concept of progressive realisation in the International Covenant on Economic, Social and Cultural Rights (icescr),36 although there is some opposition to this approach.37 The approach considers all states to have basic obligations to respect, protect and fulfil rights, although the more resources a state has, the weightier its obligations become.38 According to the icescr Committee, states must take steps that are ‘deliberate, concrete and targeted as clearly as possible towards meeting the obligations’.39 Finally, a third-tier obligation rests on the international community to assist states that are unable to fulfil their duties. 31 32 33 34 35 36 37 38

39

Hawkes C ‘Self-regulation of food advertising: What it can, could and cannot do to discourage unhealthy eating habits among children’ (2005) 30 Nutrition Bulletin 374. Arts. 18(1), 27(2) crc. Art. 18(2) crc. Art. 4 crc. Art. 4 crc. crc Committee, General Comment No. 5 (2003) on the general measures of implementation of the Convention (CRC/GC/2003/5). Nolan A ‘Economic and social rights, budgets and the Convention on the Rights of the Child’ (2013) 21 International Journal of Children’s Rights 248. See, for example, The Maastricht Guidelines on Violation of Economic, Social and Cultural Rights (1997); icescr Committee, General Comment No. 12 (1999) on the right to adequate food (E/C.12/1999/5). Committee on Economic, Social and Cultural Rights (cescr), General Comment No. 3 on the nature of States Parties’ obligations (art. 2, para. 1), un Doc. No. E/1991/23 (1990) para. 2.

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The crc Committee consists of 18 independent experts who are mandated to examine States Parties’ progress in realising their obligations under the crc.40 States submit reports (within two years of ratification and every five years thereafter) outlining factors and difficulties affecting the fulfilment of the rights found in the crc.41 Non-compliance with periodic reporting lacks a sanction and is therefore a weak form of enforcement. However, the crc Committee issues state-specific recommendations, called Concluding Observations, on the basis of its examination of the report and data from civil society and un agencies. Although the recommendations are non-binding, it is submitted that the State under review should give serious consideration to them in the light of the obligation to fulfil international treaties in good faith.42 Similarly, General Comments are non-binding, non-state-specific pronouncements that outline all States Parties’ obligations under the relevant convention.43 They are widely viewed as an authoritative interpretation of obligations.44 General Comments approach treaty obligations holistically – they go beyond merely outlining the normative content of rights and recommend a wide spectrum of action, from enshrining concepts in legislation to recommending state-led action plans. Under the right to health, State Parties shall take appropriate measures ‘to combat disease’.45 The right to food is a component of the right to health and an adequate standard of living under the crc and the icescr.46 In its General Comment on the right to health, the crc Committee placed particular emphasis on the need to regulate the marketing of ‘fast foods’ and drinks to prevent obesity.47 In relation to periodic reporting, the crc Committee has requested that States Parties provide details of their efforts to tackle both communicable and non-communicable diseases.48 In its Concluding Observations, The crc Committee has made recommendations regarding childhood obesity levels in 40 41 42

43 44 45 46 47 48

Art. 43 crc. Art. 44 crc. Art. 26 Vienna Convention on the Laws of Treaties, 1969 (1969) 8 ilm 679; O’Flaherty M ‘The Concluding Observations of United Nations Human Rights Treaty bodies’ (2006) 6 Human Rights Law Review 27. Art. 45(d) crc. Ando N ‘General Comments/Recommendations’ (2010). Art. 24(c) crc. Art. 24(2) crc; art. 27 crc; art. 11 icescr. crc Committee, General Comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24) (CRC/C/GC/15). crc Committee, General Comment (2010) on treaty-specific guidelines regarding the form and content of periodic reports to be submitted by States parties under article 44, paragraph 1 (b), of the Convention on the Rights of the Child (CRC/C/58/Rev.2).

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eighteen states.49 Most of these Observations merely draw attention to childhood obesity without offering detailed guidance on strategies to address the issue through child rights. For example, in its 2011 recommendations to ­Finland, the crc Committee expressed concern at the lack of regulation of unhealthful foods to children, but did not go so far as to recommend Finland introduce regulation.50 The crc Committee was more decisive when addressing D ­ enmark, advising it to ‘strengthen its efforts to combat obesity among children and adolescents’, in particular through engagement with ‘the mass media and the food industry to ensure their contribution to healthy lifestyles and consumption patterns by children and adolescents’.51 Thus, although the crc Committee is aware of concern regarding hfss marketing to children, it does not appear to be addressing the issue consistently, at least in the case of eu Member States. Furthermore, the crc Committee approached obesity from the perspective of health and did not address the right to food in any of the Concluding Observations examined. Looking beyond the crc, the Special Rapporteurs on the Right to Health and Food, as the ‘eyes and ears’ of the Human Rights Council, may fill gaps and further elucidate obligations from a wider perspective.52 The Special Rapporteurs’ mandates stem from the Human Rights Council and thus relate to all un Member States, not only parties to specific human rights treaties. Special Rapporteurs serve in advisory capacities, tracking and reporting issues affecting the fulfilment of the rights in question and making recommendations to the Human Rights Council.53 As their scope is much narrower than treaty bodies (which examine state progress in a number of areas), Special Rapporteurs have the opportunity to analyse specific rights or situations in greater detail. Furthermore, they are less politically constrained than the un Committees.54 49

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crc Committee, Concluding Observation: Armenia (2013); Austria (2012); Belgium (2010); Chile (2007); China (2005); Cuba (2011); Denmark (2005 & 2011); Iceland (2012); Malta (2000); Mexico (2006); Palau (2001); Saint Vincent and the Grenadines (2002); San Marino (2003); Saint Lucia (2014); Saudi Arabia (2006); Slovenia (2013); Spain (2010); and Sweden (2009). crc Committee, Concluding Observations: Finland (2011) CRC/C/FIN/4 para. 23. crc Committee un, Concluding Observations: Denmark (2011) CRC/C/DNK/4. Subedi SP ‘Protection of Human Rights through the Mechanism of un Special Rapporteurs’ (2011) 33 Human Rights Quarterly 201–04. un Human Rights Committee The right of everyone to the enjoyment of the highest attainable standard of physical and mental health Human Rights Resolution 2005/24; Mandate of the Special Rapporteur on the right to food, Human Rights Council Resolution 6/2 (27 September 2007). Subedi SP ‘Protection of human rights through the mechanism of un Special Rapporteurs’ 201–9.

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The Special Rapporteurs’ precise mandates have resulted in their being more vocal in bringing attention to food marketing to children from a rights standpoint. In his annual report on the right to health, the Special Rapporteur on the Right to Health highlighted the link between an unhealthful diet, obesity and non-communicable diseases. He added that states have a positive duty, under their obligation to protect, to regulate marketing of unhealthful foods. Collaboration between industry and government was recommended as an alternative to self-regulation.55 The former Special Rapporteur on the Right to Food has been particularly outspoken in designating obesity as a rights concern. In a non-binding report to the Human Rights Council, he called on states to adopt statutory regulation on the marketing of hfss food to children in line with the recommendations of the who.56 3.2 Rights-Based Approaches While there is no agreed ‘rights-based approach’, Tobin suggests interdependence and indivisibility, accountability and universality as three guiding principles.57 A child rights approach utilises both the provisions and general principles of the crc: non-discrimination, the right to life and development, the best interests of the child and the right to participation.58 These principles can be applied to ‘analyse governmental progress toward[s] implementation’ of rights59 as they provide ‘the normative framework to guide the design, implementation and evaluation of health care and related policies by identifying the entitlements to which all children are eligible by virtue of their status as human beings’.60 Therefore, the crc can serve as an ‘auditing tool whereby its standards are used to children’s rights-proof law and policy at domestic level’.61 55

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un Human Rights Council Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health 1 April 2014 (A/HRC/26/31). un Human Rights Council Report of the Special Rapporteur on the right to food (2011) (A/HRC/19/59). Tobin J ‘Beyond the supermarket shelf: Using a rights based approach to address children’s health needs’ (2006) 14 The International Journal of Children’s Rights 275, 281–5. uncrc Committee, Report on the second session, un Doc No CRC/C/10 (1992) para. 67. Tarantola D & Gruskin S ‘Children confronting hiv/aids: Charting the confluence of rights and health’ in Gruskin S et al. (eds) Perspectives on Health and Human Rights (2005) 229. Tobin J ‘Beyond the supermarket shelf: Using a rights based approach to address children’s health needs’ 275, 278. Lundy L & Kilkelly U ‘Children’s rights in action: Using the un Convention on the Rights of the Child as an auditing tool’ (2006) 18 Child and Family Law Quarterly 331–2.

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A registered charity made up of leading obesity professionals (the International Obesity Taskforce, or iotf, now called World Obesity Federation) drafted the only expressly ‘rights-based’ guidelines on regulating food marketing to children.62 The ‘Sydney Principles’ recommend that states protect children from food marketing as an inherent form of commercial exploitation, in the light of the rights to food and ‘freedom from obesity’ under the crc.63 Seven principles are recommended when introducing measures to reduce commercial promotion. The first is that initiatives support the rights of the child, meaning that regulations align and support the crc and the Rome Declaration on the Right to Food. The Principles do not outline in further detail what this approach requires or how it may be achieved, but the main elements are that guidelines should be statutory in nature, contain a wide definition of commercial promotions and be evaluated, monitored and enforced. The iotf received 220 submissions, including several from the food industry and health professionals, reflecting widespread support for a rights-based approach. The only opposition recorded was the food and advertising industries’ objection to statutory regulation.64 The Principles demonstrate an early recognition of the untapped potential of the crc in the regulation of marketing to children, which could serve to frame regulation as the state’s obligation and not a policy option. However, the rights-based approach should have been more clearly explained, for example by highlighting the guiding principles of the crc, and accountability, universality and interdependence, as a lens to examine the state’s obligations. 3.3 The who Marketing Guidelines Despite the Principles outlined, there is little evidence to date of convergence between international rights and international health systems in food marketing to children. As the who’s central objective is the ‘attainment by all peoples of the highest possible level of health’, unsurprisingly it has been instrumental in calling on states to address childhood obesity.65 In 2010 the who issued recommendations to guide who Member States in the restriction of marketing to children. Concerned by the lack of clear goals in Member States’ policies, it 62 63 64 65

‘Who we are’, available at http://www.worldobesity.org/who-we-are/ (accessed 8 June 2015). iotf Guiding principles for achieving a substantial level of protection for children against the commercial promotion of foods and beverages (2007). Swinburn B et al. ‘The “Sydney Principles” for reducing the commercial promotion of foods and beverages to children’ (2008). Art. 2 Constitution of the World Health Organization 1948 2; who Interim Report of the Commission on Ending Childhood Obesity (2015).

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recommended that the policy aim should be to diminish the impact on children of marketing foods high in saturated fats, trans-fatty acids, free sugars, or salt; moreover, the overall policy objective should be to lessen the exposure of children to the marketing power of these foods. Using this approach, states should design regulations or polices that not only reduce the quantity and intensity of advertisements, but also tackle the effect of such marketing on children. Therefore, the success of measures cannot be measured simply by a reduction of advertising; it must also be shown that children actually view less advertising and are less coerced. The who Guidelines call on states to act as core stakeholders, cooperate to reduce the impact of cross-border marketing, specify enforcement mechanisms, establish implementation and monitor compliance in line with objectives.66 Thus, they aim for transparent and effective state-led action to ensure the key child rights principles, such as accountability and best interests. However, the Guidelines are non-binding and not expressly rights-based. As the who Constitution enshrines the right to health and aims to integrate a rightto-health approach, the who could have anchored the Guidelines in rights as a means to highlight states’ legal obligations.67 Going forward, the crc Committee could address this oversight by drawing Member States’ attention to the Guidelines and connecting them with the provisions and principles of the crc, as it has done in relation to the who International Code on Marketing of Breast Milk Substitutes.68 4

Regulatory and Non-regulatory Responses

4.1 European Union Involvement in Food Marketing to Children The eu has devised an Action Plan on Childhood Obesity which aims to demonstrate states’ ‘shared commitment’ to addressing childhood obesity, set priorities, and propose monitoring mechanisms. Citing the who’s research, the Plan states that it is necessary to address marketing to children in order to address obesity.69 Although the eu is not bound by the crc or icescr, it 66 67 68 69

World Health Organization Set of Recommendations on the Marketing of foods and nonalcoholic beverages to children (2010). ‘The Right to Health’ (2013), available at http://www.who.int/mediacentre/factsheets/ fs323/en/ (accessed 8 June 2015). World Health Organization International Code of Marketing of Breast-Milk Substitutes (1981). European Commission European Union Action Plan on Childhood Obesity 2014–2020 (2014).

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has adopted a child rights perspective. Under article 24 of the eu Charter on Fundamental Rights, children are entitled to special protection and care and to have their best interests judged as a primary consideration.70 Thus, there is some convergence between the eu’s child rights approach and the crc, although the former is more limited in scope. Furthermore, as public health is a supporting competence, the eu’s latitude is restricted. Under the Audiovisual Media Services Directive (amsd), audiovisual commercial communications ‘shall not cause physical or moral detriment to minors’.71 Such communications must not directly encourage minors (or ­encourage them to convince their parents or others) to buy or hire a ­product or service by ‘exploiting their inexperience or credulity’.72 Additionally, ­product placement to children is prohibited.73 Thus, there is some, albeit limited, recognition of children’s increased susceptibility to marketing and lower capacity to identify advertisements. The Directive also recognises the potentially harmful role of hfss food marketing, but avoids requiring a regulatory approach. Rather, it proposes that states must encourage media service providers to develop advertising codes for hfss food and beverages during or with children’s programmes.74 This loose obligation echoes article 17 of the crc, which calls on States Parties to encourage the media to develop appropriate guidelines. Minimal responsibility is placed on the state, and instead it must only engage with the media. This system seems to contradict the child rights approach which emphasises accountability, the right to development and best interests. Individual states can adopt more stringent national measures as long as they do not breach cross-border rules. The Directive merely harmonises the law, requiring implementation at national level. From a rights perspective, different laws in eu Member States may have the result that states which are more economically dependent than others on advertising adopt weaker regulations for fear that companies will move to more favourable locations. Some also argue 70 71 72

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European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02. Audiovisuals covers ‘mass media in their function to inform, entertain and educate the general public, and should include audiovisual’ (preamble para. 22). Directive 2010/13/EU of the European Council and the European Parliament of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services oj L 95–1 (Audiovisual Media Services Directive), Art. 9(1)(g). Audiovisual Media Services Directive Art. 11(2). Audiovisual Media Services Directive Art. 9(2).

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that advertising bans may impact on the quality of children’s programmes.75 This effect warrants further study in the light of the right of the child to access information. However, the eu’s tempered approach is unsurprising, given that the majority of eu Member States have adopted self-regulatory models.76 Unconvinced that evidence establishes a significant link between marketing and adiposity, governments allow the industry to regulate and monitor itself, placing responsibility for health in the realm of businesses, whose intrinsic interest is in profit, not health. There are a number of voluntary initiatives by food and beverage companies, including the eu Pledge.77 While self-regulation is flexible and therefore more able to keep up with technology, for Spain78 and Germany,79 assessments of such self-regulatory systems have shown a failure to reduce the intensity of marketing. Research in the United States suggests that, although companies meet their pledges, this does little to change children’s exposure to food marketing as not all food marketers participate and the industry sets low benchmarks for what constitutes healthy food.80 States should fulfil their duty to protect children’s health, and not transfer responsibility to others. If self-regulation is to be used, it should be transparent, set meaningful objectives and benchmarks, be accountable with objective evaluation and subject to oversight.81 4.2 Regulation of Marketing in the United Kingdom The United Kingdom (uk) has a high rate of childhood obesity and for this reason has adopted detailed statutory and non-statutory marketing regulations. Under the Communications Act 2003 (as amended) Ofcom is tasked with reviewing standards codes, one of the aims of which is to protect those aged 75

Kang JH ‘Barbie banished from the small screen: The proposed European ban on children’s television advertising’ (2000–2001) 21 Northwestern Journal of International Law and Business 543. 76 Hawkes C ‘Self-regulation of food advertising: What it can, could and cannot do to discourage unhealthy eating habits among children’ 374. 77 The eu Pledge (2014) available at http://www.eu-pledge.eu. 78 Romero-Fernandez MM et al. ‘Compliance with self-regulation of television food and beverage advertising aimed at children in Spain’ (2010) 13 Public health nutrition 1013. 79 Effertz T & Wilcke AC ‘Do television food commercials target children in Germany?’ (2012) 15 Public health nutrition 1466. 80 Kunkel DL et al. ‘Evaluating industry self-regulation of food marketing to children’ American journal of preventive medicine. 81 Sharma LL et al. ‘The food industry and self-regulation: Standards to promote success and to avoid public health failures’ (2010) 100 American Journal of Public Health.

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under 18. Ofcom does so in the light of a risk-based model which assesses the degree of harm likely to result due to the composition of the audience. Advertisements are independently monitored, as are complaints from the public.82 Under the uk Code of Broadcast Advertising, television advertisements for hfss foods cannot be made during, before or after programmes intended for, or of particular interest to, child viewers.83 Food is defined as hfss through the Food Standards Agency Nutrient Profiling Model (npm). Television advertising directed at children (aged under 16) must not include product placement, celebrity sponsorship, health/nutritional claims, ‘pester power’ messages or licensed characters. The aim of the regulation is to reduce the exposure of children to hfss advertising, thus incorporating one of the who’s policy aims.84 Ofcom’s 2010 review estimated that children are exposed to 37 per cent less television advertising for hfss food than before the ban.85 On the other hand, a survey from Newcastle University provided data indicating that children are actually exposed to a similar level of advertising because they do not watch only ‘children’s programmes’.86 The regulations apply to programmes aimed at children, which do not include ‘family’ shows such as the xfactor, which has at least 5.8 million uk viewers.87 Furthermore, while advertisers may not use licensed characters, brand equity characters are permitted. However, brand characters have been shown to increase the desirability of products.88 Similarly, free toys are not restricted, although they impact on meal selection.89 Finally, the rules focus on ‘traditional’ media and do not apply to digital media. For instance, advergames (online games which integrate advertising) appear to influence children’s food preferences.90 Yet such ‘new’ technologies 82 Advertising Standards Authority ‘Monitoring ads’. 83 Committee on Advertising Practice The uk Code of Broadcast Advertising (2010). 84 Television advertising of food and drink products to children – Final statement (2007), para. 1.9. 85 Ofcom hfss Advertising Restrictions - Final Review (2010). 86 Adams J et al. ‘Effect of restrictions on television food advertising to children on exposure to advertisements for “less healthy” foods: Repeat cross-sectional study’ (2012) 7 PLoS ONE. 87 ‘Strictly Come Dancing beats X Factor in ratings battle’ bbc 27 September 2014. 88 De Droog SM et al. ‘Using brand characters to promote young children’s liking of and purchase requests for fruit’ (2010) 16 Journal of Health Communication: International Perspectives 78. 89 Hobin EP et al. ‘The Happy Meal(R) effect: The impact of toy premiums on healthy eating among children in Ontario, Canada’ (2012) 103 Canadian Journal of Public Health 244. 90 Pempek TA & Calvert SL ‘Tipping the balance: Use of advergames to promote consumption of nutritious foods and beverages by low-income African American children’ (2009) 163 Archives of Pediatrics & Adolescent Medicine 633.

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are left to separate self-regulatory codes, which seems insufficient from a rights perspective as this approach has been deemed inadequate for television broadcasting. Non-traditional media codes are devised by the Committee of Advertising Practice (cap), an organisation comprising representatives of the industry, and do not have force of law. The sanctions available to cap include preventing an advertisement from being repeated, the power to name and shame, to advise media not to host, to revoke privileges or require persistent non-compliers to be pre-vetted before advertising.91 Such measures are insufficient from an accountability perspective. Self-regulation is a source of concern because, in spite of industry pledges, new media such as advergames are still used to market sugary foods to children.92 One study found that 70 per cent of the top ten most popular children’s websites in the us (where advertising is self-regulated) marketed food that was of low nutritional value.93 Furthermore, Emani and Lobstein report a sharp division in the assessments of initiatives to limit advertising of food and drinks to children. According to the authors, scientific, peer-reviewed papers continue to show that there is a high level of ‘unhealthy’ food advertising, whereas industry-sponsored reports claim a high level of observance to voluntary codes.94 Thus, although regulation in the uk is remarkably stringent compared to other jurisdictions, gaps remain which leave children exposed to advertising that has been identified as contrary to their best interests. 4.3 The Swedish Approach In the 1990s Sweden adopted a rights-based approach to all marketing, whereby television advertising may not be ‘designed to attract the attention of children under 12 years of age’.95 No advertising is permitted during, immediately before or after a children’s programme, which is ‘a programme that is primarily addressed to children under twelve years of age’.96 Equally, characters or individuals prominently featured in children’s programmes may not appear in commercial television advertising. Such advertisements are considered 91 92 93 94 95 96

The Committee of Advertising Practice The uk Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (2014). Cheyne AD et al. ‘Marketing sugary cereals to children in the digital age: A content analysis of 17 child-targeted websites’ (2013) 18 Journal of Health Communication 563. Alvy LM & Calvert SL ‘Food marketing on popular children’s web sites: A content analysis’ (2008) 108 Journal of the American Dietetic Association 710. Galbraith-Emami S & Lobstein T ‘The impact of initiatives to limit the advertising of food and beverage products to children: A systematic review’ (2013) 14 Obesity Reviews 960. Chapter 8, Section 7, Radio and Television Act (rta)(2010:696). Chap. 8, s. 3 rta.

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­ nfair and can be subject to a fine under the Marketing Act.97 Furthermore, u the broadcaster’s licence may be revoked where it has ‘materially contravened’ the section.98 Although the ban was hailed as a victory for child rights, it is not as strict as has been assumed.99 Outside of children’s viewing times, an advertisement must be directed at children to be banned, and children’s music, voices and cartoons are not permitted to attract their attention.100 However, the mere fact that a product is of interest to a child is insufficient. For instance, television advertising for the video ‘Cinderella’ was legitimate, as it was not specifically designed to appeal to children or broadcast at a time with a particularly high level of child viewers.101 Likewise, an advertisement by an ice-cream company showing two clay penguins looking enviously at another walking by with an ice-cream was not within the scope of the ban. The court stated that the use of clay figures did not in itself mean that the advertisement was directed at children. The advertisement could appeal to families generally, as it was not connected with typical children’s programming time.102 Therefore, similar to the uk experience, family advertising is legal.103 The ban is outdated, and digital media in Sweden, as in the uk, is subject to self-regulatory codes. Furthermore, country-of-origin rules apply, with the result that the ban applies only to Swedish-based broadcasters.104 The two major commercial children’s channels broadcasting to Sweden are based in the uk and escaped the prohibition (although they are now subject to uk rules). However, since 2010, if a tv broadcaster wholly or primarily directed to Sweden, established 97 98 99

100 101

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Chap. 17, s. 9 rta. Chap. 18, s. 2(1) rta. ‘Advertising ban won’t stop “brand bullying”, says childhood expert’ 2011, available at http://www.independent.co.uk/news/media/advertising/advertising-ban-wont-stopbrand-bullying-says-childhood-expert-2354917.html (accessed 10 June 2015). Shave MA & Soontae A (eds) The Global Advertising Regulation Handbook (2014) 104. Konsumentombudsmannen v Buena Vista Home Entertainment AB og TV4 AB Marknadsdomstolen 2001:5 Dnr B 1/99 13 March 2001, available at http://www.marknadsdomsto len.se/Filer/Avg%C3%B6randen/Dom01.5.PDF (in Swedish). My thanks go to Katarina ­Hyltén-Cavallius for providing these translations. Konsumentombudsmannen (KO) v Hemglass Sverige Marknadsdomstolen 2002:31 Dnr B 6/01 10 December 2002, available at http://www.marknadsdomstolen.se/Filer/Avg% C3%B6randen/Dom02.31.pdf (in Swedish). Harrabin R ‘A commercial break for parents: Sweden wants children’s tv advertising banned across the ec’ 8 September 1998. (Joined Cases C-34-36/95) Konsumentombudsmannen (KO) v De Agostini (Svenska) Forlag AB and TVShop Sverige AB [1997] ecr i-3843.

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in ­another eea state, transmits advertising directed at children, the regulatory authority in Sweden may contact the relevant authority in the other state and request that they comply.105 If the broadcaster fails to, and in the event that it has established itself in order to avoid the stricter rules, the authority may take action after notifying the Commission and relevant eu Member State.106 Finally, it has been shown that children in Sweden are exposed to similarly high levels of advertising for hfss foods.107 Therefore, it is suggested that without a more comprehensive response, effective protection of children from harmful marketing is unattainable. If businesses are not held accountable for their digital marketing practices, children will continue to be exposed to media that is contrary to their best interests and rights. 5 Recommendations 5.1 Increasing the Role of the crc Committee Under the crc, all states must progressively realise the rights to health and food. In order to harness both the crc and the crc Committee’s potential to guide states in ensuring the highest attainable standard of health and adequate food, the crc Committee should interpret standards more creatively for developed states and recommend clear measures that take account of risks to health beyond the core minimum. Despite its General Comment and the high levels of childhood obesity, the crc Committee has not consistently brought attention to marketing as an area of concern, nor requested states to provide information on marketing regulations. If civil society were to mobilise as it did against tobacco marketing, it could play an instrumental role.108 It is vital for the success and legitimacy of the crc that its Committee, while encouraging the provision of digital space that offers opportunities to play and learn,109 take a proactive approach to technology that places the best interests of the child at risk.

105 Chap. 16, s. 15. 106 Chap. 16, s. 15. 107 Kelly et al. ‘Television food advertising to children: a global perspective’ (2010) 100 Am J Public Health 1730. 108 Huang TTK et al. ‘Mobilisation of public support for policy actions to prevent obesity’ The Lancet. 109 Human Rights Council The right of the child to engage in play and recreational activities (2014) (A/HRC/27/L.28).

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The crc Committee should take into account the who Guidelines and Sydney Principles and highlight best practice. A greater convergence between the crc and who bodies could strengthen protection and further the who’s mandate to mainstream the right to health. The crc Committee has drawn attention more consistently to who breastfeeding guidelines, while (thus far) ­side-lining the marketing guidelines. The crc Committee is in the unique position (through periodic reporting) of being able to request that states provide details of their regulations regarding food marketing to children, which could allow for better collation of data and marketing regulations. It is clear from the experiences of the eu, Sweden and uk that marketing is a complex issue which is not easily addressed, even through national regulation. Therefore, it is recommended that the crc Committee pursue targeted, clear recommendations with consistent follow-up, while emphasising the elements of a rights-based approach. For instance, the crc Committee could call for a broadening of the definition of a child under marketing rules in the light of the best interests of the child. Evidence suggests that the impact of marketing on young children may not be as different and that adolescents may be more influenced than was earlier believed.110 The crc Committee should also highlight the need for accountability through effective sanctions and remedies where marketing codes are breached. 5.2 An Alternative Approach While the crc Committee (and other commentators) has dealt with marketing to children predominantly under the rubric of the right to health, it could approach the topic from the perspective of protection of children from exploitation. Under article 36 of the crc, children are afforded wide protection from commercial exploitation. This raises interesting questions. For example, it is sometimes suggested that the marketing techniques adopted by hfss advertisers should be used to boost consumption of fruit and vegetables.111 If this were done, and the techniques characterised at the same time as inherently exploitative, would it imply that exploitation is acceptable if it is in children’s best interests?112 110 Carter O et al. ‘Children’s understanding of the selling versus persuasive intent of junk food advertising: Implications for regulation’ (2011) 72 Social Science & Medicine 962; ­Harris JL et al. ‘The food marketing defense model: Integrating psychological research to protect youth and inform public policy’ (2009) 3 Social issues and Policy Review 211. 111 Cicchirillo V Stop playing with your food: A comparison of for-profit and non-profit foodrelated advergames (2011). 112 Linn S & Novosat CL ‘Calories for sale: Food marketing to children in the twenty-first century’ 133.

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In 2013 the crc Committee issued General Comment No. 16 on state obligations regarding the impact of the business sector on children’s rights. It noted that ‘the marketing to children of products such as cigarettes and alcohol as well as foods and drinks high in saturated fats, trans-fatty acids, sugar, salt or additives can have a long-term impact on their health’.113 It called for effective monitoring and regulating of advertising and marketing to children. Although the crc Committee drew specific attention to the who Framework Convention on Tobacco Control and the International Code on Breast-milk Substitutes, it did not mention the who marketing guidelines.114 Furthermore, the significance of article 17 of the crc, which requires States Parties to encourage media to develop codes to protect children from harm, remains under-explored. It is submitted that any regulation of access to media must be the least injurious to the child’s participation rights, such as the right to play and express and form opinions. 6 Conclusion In view of the worldwide propagation of food marketing to children and high rates of childhood obesity, it has been argued that states are under an obligation to protect children from harmful marketing, ideally through regulatory responses. A child rights approach assesses the basis and content of regulations through a number of principles. These include universality, accountability, interdependence and indivisibility, best interests, the right to life and development, participation and non-discrimination. Furthermore, food marketing can be examined through the lens of the right to health and food. It has been suggested that there is scope to limit marketing by adopting the perspective of protecting children from exploitation. It is proposed that the crc Committee, as the body responsible for monitoring and evaluating state compliance with the central child rights treaty, adopt a more proactive role. The crc Committee should give regard to the who marketing guidelines, as well as existing regulations in the eu, uk and Sweden. A global regulatory response to food marketing is a key step to protecting children’s rights and best interests as well as ensuring accountability.

113 crc Committee, General Comment No. 16 (2013) on state obligations regarding the impact of the business sector on children’s rights (CRC/C/GC/16) para. 19. 114 General Comment No. 16 (2013), para. 57.

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Bibliography Books

Alston P & Goodman R International Human Rights (2012) Oxford University Press. Bakan J Childhood under Siege (2012) New York: Free Press. Carmona MS Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (2003) The Netherlands: Intersentia. Garde A EU Law and Obesity Prevention (2010) The Netherlands: Kluwer Law International. Gruskin S et al. (eds) Perspectives on Health and Human Rights (2005) New York and London: Routledge. Mann J et al. (eds) Health and Human Rights (1999) New York and London: Routledge. Shave MA & Soontae A (eds) The Global Advertising Regulation Handbook (2014) ­United States: ME Sharpe. Wadsworth BJ Piaget’s Theory of Cognitive and Affective Development: Foundations of Constructivism (2004) Psychology Press.

Chapters in Books

Alston P ‘The historical origins of the concept of “General Comments” in Human Rights Law’ in Boisson de Chazournes L & Kohen MD (eds) The International Legal System in Quest of Equity and Universality (2001) Leiden: Brill. Livingstone S & O’Neill B ‘Children’s rights online: Challenges, dilemmas and emerging directions’ in Van Der Hof S et al. (eds) Minding Minors Wandering the Web: Regulating Online Child Safety (2014) The Hague: Asser Press. Tarantola D & Gruskin S ‘Children confronting HIV/AIDS: Charting the confluence of rights and health’ in Gruskin S et al. (ed) Perspectives on Health and Human Rights (2005) New York and London: Routledge.

Journal Articles

Adams J et al. ‘Effect of restrictions on television food advertising to children on exposure to advertisements for “less healthy” foods: Repeat cross-sectional study’ (2012) 7 PLoS ONE. Aktas Arnas Y ‘The effects of television food advertisement on children’s food purchasing requests’ (2006) 48 Pediatrics International 138. Ali M et al. ‘Young children’s ability to recognize advertisements in web page designs’ (2009) 27 The British Journal of Developmental Psychology 71. Alvy LM & Calvert SL ‘Food marketing on popular children’s web sites: A content analysis’ (2008) 108 Journal of the American Dietetic Association 710. Bailey R et al. ‘How avatar customizability affects children’s arousal and subjective presence during junk food-sponsored online video games’ (2009) 12 Cyberpsychology & behavior 277.

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Brownell KD et al. ‘Personal responsibility and obesity: A constructive approach to a controversial issue’ (2010) 29 Health affairs (Project Hope). Cairns G et al. ‘Systematic reviews of the evidence on the nature, extent and effects of food marketing to children: A retrospective summary’ (2013) 62 Appetite 209. Carter OB et al. ‘Children’s understanding of the selling versus persuasive intent of junk food advertising: Implications for regulation’ (2011) 72 Social Science & Medicine 962. Cheyne AD et al. ‘Marketing sugary cereals to children in the digital age: A content analysis of 17 child-targeted websites’ (2013) 18 Journal of Health Communication 563. Cicchirillo V ‘Stop playing with your food: A comparison of for-profit and non-profit food-related advergames’ (2011) 51(3) Journal of Advertising Research 484. Coon KA & Tucker KL ‘Television and children’s consumption patterns. A review of the literature’ (2002) 54 Minerva pediatrica 423. Curtis P ‘The experiences of young people with obesity in secondary school: Some implications for the healthy school agenda’ (2008) 16 Health & social care in the community. De Droog SM, Valkenburg PM & Buijzen M ‘Using brand characters to promote young children’s liking of and purchase requests for fruit’ (2010) 16 Journal of Health Communication: International Perspectives 78. Dietz WH Jr. & Gortmaker SL ‘Do we fatten our children at the television set? Obesity and television viewing in children and adolescents’ (1985) 75 Pediatrics 807. Doek JE ‘What does the Children’s Convention require?’ (2006) 20 Emory Int’l L Rev 199. Doek JE ‘Children and their right to enjoy health: A brief report on the monitoring activities of the Committee on the Rights of the Child’ (2010) 5(2) Health and Human Rights 155. Doak CM et al. ‘Age standardization in mapping adult overweight and obesity trends in the WHO European Region’ (2012) 13 Obesity Reviews 174. Effertz T & Wilcke AC ‘Do television food commercials target children in Germany?’ (2012) 15 Public health nutrition 1466. Galbraith-Emami S & Lobstein T ‘The impact of initiatives to limit the advertising of food and beverage products to children: A systematic review’ (2013) 14 Obesity Reviews 960. Harris JL et al. ‘Priming effects of television food advertising on eating behavior’ (2009) 28 Health psychology 404. Harris JL et al. ‘The food marketing defense model: Integrating psychological research to protect youth and inform public policy’ (2009) 3 Social issues and policy review 211. Hawkes C ‘Self-regulation of food advertising: What it can, could and cannot do to discourage unhealthy eating habits among children’ (2005) 30 Nutrition Bulletin 374. Hobin EP et al. ‘The Happy Meal(R) Effect: The impact of toy premiums on healthy eating among children in Ontario, Canada’ (2012) 103 Canadian journal of public health 244. Ingleby R et al. ‘UNCROC and the prevention of childhood obesity: The right not to have food advertisements on television’ (2008) 16 Journal of law and medicine 49. Jenkin G et al. ‘A systematic review of persuasive marketing techniques to promote food to children on television’ (2014) 15 Obesity Reviews 281.

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Kang JH ‘Barbie banished from the small screen: The proposed European ban on children’s television advertising’ (2000–2001) 21 Northwestern Journal of International Law and Business 543. Kelly B et al. ‘Television food advertising to children: a global perspective’ (2010) 100 American Journal of Public Health 1730. Kunkel D ‘Commentary mismeasurement of children’s understanding of the persuasive intent of advertising’ (2010) 4 Journal of Children and Media 109. Linn S & Novosat CL ‘Calories for sale: Food marketing to children in the twenty-first ­century’ (2008) 615 The Annals of the American Academy of Political and Social Science 133. Lobstein T et al. ‘Obesity in children and young people: A crisis in public health’ (2004) 5 Obesity Reviews 4. Lobstein T & Dibb S ‘Evidence of a possible link between obesogenic food advertising and child overweight’ (2005) 6 Obesity reviews 203. Lundy L & Kilkelly U ‘Children’s rights in action: Using the UN Convention on the Rights of the Child as an auditing tool’ (2006) 18 Child and Family Law Quarterly 331. Mallinckrodt V & Mizerski D ‘The effects of playing an advergame on young children’s perceptions, preferences, and requests’ (2007) 36 Journal of Advertising 87. Neier A ‘Social and economic rights: A critique’ (2006) 13 Human Rights Brief 1. Nolan A ‘Economic and social rights, budgets and the Convention on the Rights of the Child’ (2013) 21 International Journal of Children’s Rights 248. O’Flaherty M ‘The Concluding Observations of United Nations Human Rights Treaty bodies’ (2006) 6 Human Rights Law Review 27. O’Hara L & Gregg J ‘Human Rights casualties from the “War on Obesity”: Why focusing on body weight is inconsistent with a human rights approach to health’ (2012) 1 Fat Studies. Pempek TA & Calvert SL ‘Tipping the balance: Use of advergames to promote ­consumption of nutritious foods and beverages by low-income African American children’ (2009) 163 Archives of pediatrics & adolescent medicine 633. Potvin Kent M et al. ‘A nutritional comparison of foods and beverages marketed to children in two advertising policy environments’ (2012) 20 Obesity 1829. Rees RW et al. ‘“It’s on your conscience all the time”: A systematic review of qualitative studies examining views on obesity among young people aged 12–18 years in the UK’ (2014) 4 BMJ open. Robinson TN ‘Television viewing and childhood obesity’ (2001) 48 Pediatric clinics of North America 1017. Roedder John D ‘Consumer socialization of children: A retrospective look at twenty‐ five years of research’ (1999) 26 Journal of Consumer Research 183. Romero-Fernandez MM et al. ‘Compliance with self-regulation of television food and beverage advertising aimed at children in Spain’ (2010) 13 Public health nutrition 1013.

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Rozendaal E et al. ‘Comparing children’s and adults’ cognitive advertising competences in the Netherlands’ (2010) 4 Journal of Children and Media 77. Rozendaal E et al. ‘Reconsidering advertising literacy as a defense against advertising effects’ (2011) 14 Media Psychology 333. Subedi SP ‘Protection of Human Rights through the mechanism of UN Special ­Rapporteurs’ (2011) 33 Human Rights Quarterly 201. Simpson C & Simpson B ‘Childhood obesity and the importance of rights discourse: A way forward for public health practitioners’ (2004) 4 Environmental Health 53. Swinburn B et al. ‘The “Sydney Principles” for reducing the commercial promotion of foods and beverages to children’ (2008) 11 Public health nutrition 881. Tobin J ‘Beyond the supermarket shelf: using a rights based approach to address children’s health needs’ (2006) 14 The International Journal of Children’s Rights 275. Waterston T & Goldhagen J ‘Why children’s rights are central to international child health’ (2007) 92 Archives of Disease in Childhood 176.

Reports

Advertising Education Forum Digital Marketing and Advertising to Children: A Literature Review (2012) Advertising Education Forum. Flash Eurobarometer upon the request of Directorate General Information Society and Media Towards a Safer Use of the Internet for Children in the EU – A Parents’ Perspective Analytical report (2008) Flash Eurobarometer. Montgomery K et al. Food Marketing in the Digital Age: A Conceptual Framework and Agenda for Research (2011) Center for Digital Democracy. OECD Directorate for Employment Labour and Social Affairs Obesity Update (2014) OECD. Ofcom Children and Parents: Media Use and Attitudes Report 2014 (2014) UK: Ofcom. Ofcom HFSS Advertising Restrictions – Final Review (2010) UK: Ofcom. Ofcom Television Advertising of Food and Drink Products to Children – Final Statement (2007) UK: Ofcom. The WHO Regional Office for Europe Overview of Implementation of Statutory and ­Self-Regulatory Codes in the Area of Marketing Foods and Beverages to Children in European Union Member States (2010) Copenhagen: The WHO Regional Office for Europe.

UN Resolutions/Reports

The right of everyone to the enjoyment of the highest attainable standard of physical and mental health Human Rights Resolution 2005/24. Mandate of the Special Rapporteur on the right to food, Human Rights Council Resolution 6/2 (27 September 2007). UN Committee on the Rights of the Child (UNCRC) UN Committee on the Rights of the Child: Concluding Observations Denmark (2011) CRC/C/DNK/4.

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UN Human Rights Council Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health 1 April 2014 (A/HRC/26/31). UN Human Rights Council Report of the Special Rapporteur on the right to food 26 ­December 2011 (A/HRC/19/59).

Conventions

International Covenant on Economic, Social and Cultural Rights 1966 (1967) 6 ILM 360. UN Convention on the Rights of the Child 1989 (1989) 28 ILM 1456.

General Comments

Committee on Economic, Social and Cultural Rights, General Comment No. 12 (1999) on the right to adequate food (E/C.12/1999/5). Committee on the Rights of the Child, General Comment No. 5 (2003) on the general measures of implementation of the Convention (CRC/GC/2003/5). Committee on the Rights of the Child, General Comment (2010) on treaty-specific guidelines regarding the form and content of periodic reports to be submitted by States parties under article 44, paragraph 1 (b), of the Convention on the Rights of the Child (CRC/C/58/Rev.2). Committee on the Rights of the Child, General Comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art 24)’ (CRC/C/GC/15). Committee on the Rights of the Child, General Comment No. 16 (2013) on state obligations regarding the impact of the business sector on children’s rights (CRC/C/GC/16).

Guidelines

International Obesity Task Force Guiding principles for achieving a substantial level of protection for children against the commercial promotion of foods and beverages (2007). The Committee of Advertising Practice The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (2014). The Committee on Advertising Practice The UK Code of Broadcast Advertising (2010). The EU Pledge (2014), available at http://www.eu-pledge.eu. The Maastricht Guidelines on Violation of Economic, Social and Cultural Rights (1997). World Health Organisation (WHO) International Code of Marketing of Breast-Milk Substitutes (1981). World Health Organisation (WHO) Set of Recommendations on the Marketing of foods and non-alcoholic beverages to children (2010) Geneva.

EU Directives

Directive 2010/13/EU of the European Council and the European Parliament of 10 March 2010 on the coordination of certain provisions laid down by law, regulation

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or administrative action in Member States concerning the provision of audiovisual media services OJ L 95–1.

Cases

(Joined Cases C-34-36/95) Konsumentombudsmannen (KO) v De Agostini (Svenska) ­Forlag AB and TVShop Sverige AB [1997] ECR I-3843. Konsumentombudsmannen v Buena Vista Home Entertainment AB og TV4 AB Marknadsdomstolen 2001: 5 Dnr B 1/99 13 March 2001 available at: http://www.marknadsdomstolen.se/Filer/Avg%C3%B6randen/Dom01.5.PDF (in Swedish). Konsumentombudsmannen (KO) v Hemglass Sverige Marknadsdomstolen 2002: 31 Dnr B 6/01 10 December 2002, available at: http://www.marknadsdomstolen.se/Filer/ Avg%C3%B6randen/Dom02.31.pdf (in Swedish).

Legislation

The Communications Act 2003 (as amended). The Radio and Television Act (1996: 844). The Marketing Act (2010: 496).

Internet Sources

Ando N ‘General Comments/ Recommendations’ (Max Planck Encyclopaedia of Public International Law, 2010), available at http://ilmc.univie.ac.at/uploads/media/­ general_comments_recommendations_empil.pdf (accessed 17 October 2015). ‘Internet Advertising Revenue Half-Year Report’ Internet Advertising Bureau (2014), available at http://www.iab.net/research/industry_data_and_landscape/ adrevenuereport#sthash.EbeFn8GB.dpuf (accessed 19 December 2014). ‘Monitoring ads’ Advertising Standards Authority, available at http://www.asa.org.uk/ Consumers/Monitoring-ads.aspx (accessed 19 December 2014). ‘Strictly Come Dancing beats X Factor in ratings battle’ BBC 27 September 2014, ­available at http://www.bbc.com/news/entertainment-arts-29392694 (accessed 19 December 2014). ‘The Right to Health’ 2013, available at http://www.who.int/mediacentre/factsheets/ fs323/en/ (accessed 17 October 2015). ‘Trillion-dollar kids, Children exert a surprising influence over the purchase of grownup goods’ The Economist 30 November 2006, available at http://www.economist .com/node/83550 (accessed 19 December 2014). ‘What is a Cookie?’ All About Cookies, available at http://www.allaboutcookies.org/ cookies/ (accessed 17 October 2015). ‘Why does Childhood Obesity and Overweight Matter?’ World Health Organisation, available at http://www.who.int/dietphysicalactivity/childhood_consequences/en/ (accessed 19 December 2014).

chapter 28

A Children’s Rights Audit of the International Criminal Court: Introducing a Measurement Matrix for Monitoring Institutions Annelotte Walsh Abstract In 2011 the author of this chapter embarked on a research project to examine the e­ xtent to which the laws, policies and practice of the International Criminal Court (icc) in relation to child victims and witnesses meet child-friendly justice standards as outlined in various international children’s rights treaties and documents. Whilst the use of the children’s rights standards for monitoring of state policies and practice is widely recognised, the author found that relatively little attention has been given to the potential of the crc as an analytical tool for examining institutions, in particular international institutions. In addressing this research gap the author thus developed a specific measurement matrix that could be used for conducting a children’s rights audit of the icc. The purpose of this chapter is to outline the importance of children’s rights monitoring of (international) institutions such as the icc and to introduce a measurement matrix for undertaking such monitoring. Whilst specifically developed for monitoring international criminal institutions, the matrix, it is argued, can easily be modified to be used to monitor domestic criminal institutions or even other international institutions. The matrix offers a useful contribution to the growing body of literature on monitoring and reporting on the progress of children’s rights implementation.

1 Introduction The adoption of the un Convention on the Rights of the Child (crc) in 1989 marked the culmination of increased recognition of the legal rights of children under international law. Twenty-five years later the crc remains one of the most widely ratified international human rights instruments, signalling the high value placed on safeguarding children.1 While profound progress in children’s lives has been achieved in the past 25 years, many commentators have 1 Lundy L & McEvoy L ‘Developing outcomes for educational services: A children’s rightsbased approach’ (2009) 1(1) Effective Education 43–60; Van Bueren G The International Law on

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identified the limitations of the crc and questioned its effectiveness, given that millions of children continue to have their fundamental rights violated each day.2 Despite its possible shortcomings, Kilkelly and Lundy point to a general agreement on the importance of enforcement and implementation as key to realising the Convention’s potential to improve the lives of children.3 Monitoring and analysing the implementation of the crc in practice is, in turn, an integral aspect of enforcement and implementation.4 Kilkelly notes that auditing law, policy and practice from a children’s rights perspective is an essential way to achieve greater compliance with international standards. It not only helps measure progress towards implementation of children’s rights but also reveals gaps and barriers frustrating greater progress.5 The Committee on the Rights of the Child has further emphasised that rightsproofing and auditing of law, policy and practice and of budgets is part of a state’s legal duty to implement the crc under the Convention’s article 4 and that such monitoring should also be taken up by, for example, parliamentary committees, ngos, academic institutions and professional associations.6 As rightly noted by Kilkelly, the strength of using the crc as an auditing framework lies in the wide coverage of its provisions, as it encompasses civil and political rights, economic, social and cultural rights and humanitarian provisions in a single human rights document.7 The crc thus provides a

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the Rights of the Child (1998); McGoldrick D ‘The United Nations Convention on the Rights of the Child’ (1991) 5 International Journal of Law and the Family 132–69. For statistical data on the improvement of children’s lives as well as a variety of perspectives on the achievements of the crc, see unicef 25 Years of the Convention of the Rights of the Child: Is the World a Better Place for Children? (2014). See also Bissell S ‘25 Years After Rights Convention, Children Still Need more Protection’ ips News 14 November 2014. Kilkelly U ‘Using the Convention on the Rights of the Child in law and policy’ in Invernizzi A & Williams J (eds) The Human Rights of Children: From Visions to Implementation (2011) 179–218. Generally, rights monitoring refers to various ways of studying, investigating and collecting information to see whether human rights standards or norms are being met. See huridocs What is Monitoring? (2003). Kilkelly U A Children’s Rights Analysis of Investigations (2011) 24. Committee on the Rights of the Child, General Comment No. 5 on general measures of implementation of the Convention on the Rights of the Child (2003) un Doc Crc/Gc/2003/5 (hereinafter ‘General Comment No. 5’) para. 46. Lundy L & Kilkelly U ‘Children’s rights in action: Using the un Convention on the Rights of the Child as an auditing tool’ (2006) 18(3) Child and Family Law Quarterly 335.

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f­ lexible framework for analysis that can be tailored to any particular group of children, any area of the child’s life or any institution.8 Moreover, the provisions of the crc recognise children’s unique vulnerability and needs. The fact that these standards are grounded in international law provides findings with additional credibility and authority. Taken together, the scope and breadth of the crc’s provisions thus provide researchers with standards across almost all aspects of children’s lives, standards that are widely supported, relevant and easily understood.9 In 2011 the author of this chapter set out to conduct a children’s rights audit of the laws, policy and practice of the International Criminal Court (icc) in an effort to determine the extent to which these laws, policies and practice are in accordance with internationally recognised children’s rights standards.10 While the potential of the crc as a monitoring tool for state policies and practice is increasingly recognised and used, the author found that very little precedent existed in using the crc as an analytical tool for monitoring an (international) institution.11 While an expanding body of monitoring matrices has been and continues to be developed by a range of institutions, in particular (i)ngos such as unicef, the Office of the High Commissioner for Human Rights and fao,12 it was found that none of the existing matrices was fully appropriate to be used to audit the icc.

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Kilkelly U ‘Using the Convention on the Rights of the Child in law and policy’ in Invernizzi A & Williams J (eds) The Human Rights of Children: From Visions to Implementation (2011) 187. Lundy L & Kilkelly U ‘Children’s rights in action: Using the un Convention on the Rights of the Child as an auditing tool’ (2006) 18(3) Child and Family Law Quarterly 331–50. There are many ways to describe the process of examining the extent to which laws, policies and practices of institutions adhere to international human rights standards, including ‘monitoring’, ‘assessing’, ‘examining’ and ‘auditing’. Building on the work of Ursula Kilkelly, this research adopts the phrase ‘auditing’ as it is considered particularly appropriate for the process of examining institutions. There are some notable exceptions, for example, Kilkelly U The Children’s Court: A Children’s Rights Audit (2005); Aptel C & Ladisch V Through a New Lens: A Child-Sensitive ­Approach to Transitional Justice (2011). While relatively uncommon, monitoring of institutions is generally recognised as a form of human rights monitoring; see huridocs What is Monitoring? (2003) 31. See, for example, unicef Building Child-friendly Cities: A Framework for Action (2004); ohchr Manual on Human Rights Monitoring, Monitoring Economic, Social and Cultural Rights (2001); fao Methods to Monitor the Human Right to Adequate Food, Vol ii: An Overview of Approaches and Tools (2008). Several academics have also developed frameworks or matrices for analysis. See, for example, Carvalho E ‘Measuring children’s rights: An

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In addressing the research gap, the author sought to develop a specific measurement matrix for conducting a children’s rights audit of the icc. This chapter introduces the matrix, discusses some of its strengths and weaknesses, and offers suggestions on how the matrix can be used or adapted to monitor domestic criminal justice institutions or even other international institutions. As such, the measurement matrix is a useful contribution to the growing body of literature on monitoring of and reporting on the progress of children’s rights implementation. 2

Background to the Research

As a result of increased recognition of the legal rights of children over the past few decades, much progress has been made in the recognition that children who come into contact with the criminal justice system – whether as witness, victim or offender – require special care and attention, recognition which has led to the concept of ‘child-friendly justice’.13 Child-friendly justice can be understood as a justice system that aims to ensure that relevant children’s rights provisions and other international legal instruments related to child justice are reflected in all its laws, policies and practices. This development has been reflected not only in changes in domestic criminal justice systems but in international criminal tribunals, which have started to focus increasingly on crimes committed against children and on involving children actively as victims and witnesses in proceedings. This is so particularly in the icc, which was established in 2001 as the first permanent international criminal tribunal to hold perpetrators of serious war crimes, crimes against humanity and genocide accountable. Compared to previous international tribunals, the icc can be considered progressive in its consideration of child victims and witnesses, both in the inclusion of crimes committed against children within the jurisdiction of the Court as well as inclusion of several child-specific procedural provisions in its legal framework. Unfortunately, this theoretical commitment to the rights of child victims and witnesses has not been translated fully into reality, and child victims and witnesses continue to face numerous challenges when interacting with the Court.

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alternative approach’ (2008) 16(4) International Journal of Children’s Rights 545–63; Landman T & Carvalho E Measuring Human Rights (2010). Council of Europe, Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice (2010) Article IIa; un Economic and Social Council (ecosoc) Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime (2005) un Doc E/2005/20 (‘Guidelines’).

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The research project thus set out to undertake a children’s rights audit of the laws, policies and practice of the Court in order to identify progress towards, and gaps in, the realisation of the rights of children who come into contact with the Court as well as to identify challenges faced by the Court in implementing these rights.14 While it is recognised that only states have legal obligations under international human rights law and that the ‘soft law’ documents are not legally binding, this chapter argues that the expansive web of both binding and non-binding human rights instruments set internationally recognised standards of ‘what ought to be’. These standards are recognised, accepted declarations of intention from internationally respected organs and bodies of the un and Europe, and agreed upon by a community of significant state representatives. Regardless of whether or not they are binding, these standards set useful benchmarks against which the policies and practice of any state, institution or organisation can be measured. Beyond their role as standard-setting texts which can be used as an auditing tool for human rights monitoring, it can further be said that, whilst the icc is not party to any human rights treaty, article 21(3) of the Rome Statute requires that the law applied by the icc must be interpreted and applied in accordance with ‘internationally recognised human rights’.15 This provision thus supports the view that the rights of children as outlined in the crc are in fact applicable to the icc. Nevertheless, any identified gaps in the ‘compliance’ with these standards by an institution do not officially constitute human rights violations, but rather indicate areas in which an institution can make progress towards the realisation of children’s rights. 3

Child-Friendly Justice Matrix

The ‘child-friendly justice measurement matrix’ has two dimensions (see Table  28.1 below). The first dimension consists of ‘child-friendly justice ­ 14

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The research builds on two important research projects that have since been completed, both of which provide important contributions and insights into the involvement of children in the icc. See Beckmann-Hamzei H The Child in icc Proceedings (unpublished PhD thesis, Leiden University, 2015) and Chamberlain C Children and the International Criminal Court: Analysis of the Rome Statute through a Children’s Rights Perspective (PhD Thesis, Leiden University, 2014). It must be noted, however, that both research projects approached the issue of children and the icc from different perspectives and neither explicitly used the crc as an analytical tool to conduct an audit of the laws, policies and practice. For a more detailed analysis of article 21(3) from different points of view, see Chamberlain C Children and the International Criminal Court: Analysis of the Rome Statute through a Children’s Rights Perspective (PhD Thesis, Leiden University, 2014) 47–72.

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Table 28.1 Child-friendly justice measurement matrix Levels of Analysis i. Legal ii. Policies and iii. Practice framework procedures (1) Accountability for crimes ­committed against children

Killing and maiming of children Recruitment or use of c­ hildren as soldiers Sexual violence against children Abduction of children Attacks against schools or hospitals Denial of humanitarian access for children

(2) Child protection

Protection against non-discrimination Right to be treated with dignity and compassion Best interests of the child Right to safety

Categories of Child-friendly Justice Indicators

Right to effective assistance Right to be protected from hardship during justice process Right to privacy (3) Participatory rights of child ­victims and witnesses

Right to express views and be consulted

(4) Reparations for child victims

Right to reparation

(5) Institutional measures of implementation

Staffing and Training

Right to information

Children’s Strategy Cooperation Budget Allocation

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e­ lements’ against which the laws, policies and practice of the court can be measured. The second dimension consists of different levels of analysis against which the data can be examined. 3.1 Legal Foundations The legal foundation of the measurement matrix can be found in international children’s rights as embodied in the crc, as well as various other international human rights instruments. The crc provides a framework within which any form of concrete action or intervention that affects children should take place. Various articles in the crc set out principles for the treatment of children involved in the criminal justice process. First, article 4 requires States Parties to adopt appropriate and effective legislative and administrative procedures and other appropriate measure that provide for effective and prompt justice. In relation to this article, the Committee on the Rights of the Child affirmed that States need to give particular attention to ensuring that there are effective, child-sensitive procedures available to children and their representatives. These should include the provision of child-sensitive information, advice, advocacy – including support for self-advocacy – and access to independent complaints procedures and to the courts with necessary legal and other assistance.16 Furthermore, article 40 of the crc sets out standards for the administration of juvenile justice in a manner which fully respects the rights of the child. While this article applies only to children accused of breaking the law, it nevertheless provides useful benchmarks for the treatment of children involved in the justice system in general. Moreover, while the fair trial rights provided for in the iccpr are equally applicable to children,17 the crc provides an additional list of fundamental safeguards to ensure fair treatment of children involved in the criminal justice process, for example the rights to information (article 17), to be heard (article 12), to expeditious decisions (article 18), to prompt access to legal assistance and to prompt decisions by the court (article 37(d)). In addition to the provisions of the crc, a range of non-binding international and regional standards, guidelines and rules have been developed prescribing common standards for the treatment of victims and/or witnesses, most importantly the Guidelines on Justice in Matters involving Child Victims 16 17

Committee on the Rights of the Child, General Comment No. 5 (2003) un Doc Crc/ Gc/2003/5, 24. Arts. 14 and 16 iccpr.

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and Witnesses of Crime (hereinafter, Guidelines).18 These Guidelines identify a range of principles and rights specifically relating to child victims and witnesses of crime, each of which is directly derived from the crc and related international children’s rights norms. It must be noted that both the crc and the Guidelines contain a set of general principles that underpin the crc as well as the Guidelines as a whole. These general principles are: non-discrimination (article 2); the best interest of the child (article 3); the right to life, survival and development (article 6); and the right for children to have their views heard and given due weight in all decisions affecting them (article 12).19 While ‘survival and development’ are considered by the Committee on the Rights of the Child as a general principle of the crc, Popovski and Arts argue that ‘survival and development’ make up the substantive objective of the crc and should therefore be seen as a different category than the other three principles that direct the form and orientation of all implementing measures.20 For the purpose of using the crc as an analytical tool, this research agrees with this view and therefore only considers the first three principles as overarching and cross-cutting principles. For ease of clarity and data collection, the guiding principles have been incorporated in the most appropriate category of child-friendly justice indicators in the matrix as discussed below. However, it is important to recognise these principles as overarching and cross-cutting to consider them as such in the analysis of the findings. 3.2 Child-Friendly Justice Indicators Based on the child-friendly justice standards as outlined in the crc and the Guidelines, the author compiled a range of child-friendly justice indicators that were divided into five broad categories: (1) accountability for crimes committed against children; (2) child protection; (3) participatory rights of child victims and witnesses; (4) reparations for child victims; and (5) institutional measures of implementation. 18

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See also un Economic and Social Council (ecosoc), Guidelines for Action on Children in the Criminal Justice System (1997); un Secretary General, Guidance Note of the Secretary General: un Approach to Justice for Children (2008); Committee on the Rights of the Child, General Comment No. 5 (2003); Council of Europe Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice (2010). General Comment No. 5 on general measures of implementation of the Convention on the Rights of the Child (2003) 3–5. Arts K & Popovski V (eds) International Criminal Accountability and the Rights of Children (2006) 3.

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Taken together, these categories cover all relevant aspects of the theoretical framework for child-sensitive justice. The framework recognises children as full and active holders of rights who have essential experiences to offer in matters that affect them while at the same time ensuring that children are treated in a manner that ensures equality, dignity and respect in accordance with their evolving capacities. It furthermore recognises that crimes against children must be duly investigated and prosecuted and that those justice mechanisms need to adopt certain institutional developments to ensure the realisation of child-sensitive justice. It is important to reiterate that all children’s rights are interdependent and interrelated and that there is at least some overlap within and between the categories. For example, many of the protection rights are also integral aspects of participation rights, and the right to reparation is closely related to the right to participate. However, for analytical purposes, an attempt was made to keep the categories separated as far as possible. Each of the five categories is discussed briefly below. 3.2.1 Accountability for Crimes Committed against Children This first element of child-friendly justice is one which is not often discussed in the context of child-friendly justice, namely accountability for crimes committed against children. No justice system can be considered child-friendly if it does not duly investigate and, if necessary, prosecute crimes committed against children. This element is of particular importance for international criminal justice settings. In the sphere of international criminal justice, the extent to which alleged crimes committed against children are investigated and prosecuted is largely up to the prosecutor due to the high level of prosecutorial discretion to select the narrow set of crimes and cases to be litigated from the large pool of international crimes which fall within the mandate of international tribunals. In certain domestic criminal justice settings, however, the prosecutor may not have such discretion and this category may therefore be irrelevant and omitted if this model is applied to domestic judicial institutions. Accountability for crimes committed against children is not an explicit human right; however, several arguments can be advanced to support why this is a crucial element of a child-friendly international criminal justice system. First, while there may not be an explicit right of child victims of grave international crimes to justice or accountability, the need to end impunity for crimes committed against children has been widely recognised by the international community and voiced in a broad range of international declarations and

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­documents.21 Even though these documents have no official legal standing and are not enforceable, they reflect a growing international consensus to hold accountable the perpetrators of the most egregious crimes committed against children. Moreover, no justice system can be considered child-sensitive if it does not give due consideration to crimes committed against children. Secondly, it can be argued that under international human rights law victims have a right to effective remedy,22 from which a duty to investigate and prosecute can be inferred.23 Several human rights adjudicatory and advisory bodies, in particular the Human Rights Committee, have interpreted the right to a remedy as encompassing an obligation to bring to justice perpetrators of human rights abuses.24 A third argument is that States Parties have an obligation to ‘respect or secure’ the rights embodied in international human rights instruments,25 which has been widely interpreted by human rights institutions as well as human rights scholars to include the obligation to investigate and prosecute breaches of rights.26 Based on the principle of complementarity, this obligation extends to the international justice mechanisms if states 21

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Including in unga resolutions on the Rights of the Child, un Security Council Resolutions on Children and Armed Conflict; un Secretary General Annual Reports on Children and Armed Conflict; and statements made by the President of the Security Council on Children and Armed Conflict. Art. 39 crc; art. 2(3) iccpr; art. 6 icerd; art. 14 cat; art. 8 udhr. See, for example, Roht-Arriaza N ‘State responsibility to investigate and prosecute grave human rights violations in international law’ (1990) 78(2) California Law Review 449; AldanaPindell R ‘An emerging universality of justiciable victims’ rights in the criminal process to curtail impunity for state-sponsored crimes’ (2004) 26(3) Human Rights Quarterly 605. For an overview of all relevant jurisprudence of the Human Rights Committee, see Spiga V ‘No redress without justice: Victims and international criminal law’ (2012) 10(5) Journal of International Criminal Justice 1377, fn. 23–5; and Aldana-Pindell R ‘An emerging universality of justiciable victims’ rights in the criminal process to curtail impunity for statesponsored crimes’ (2004) 26(3) Human Rights Quarterly 605, fn. 231. Most human rights conventions are silent about a duty to punish violations of the rights they were designed to protect. However, most general human rights conventions obligate states to ‘ensure and/or respect’ the rights enumerated therein. For example, art. 2(1) crc; art. 2(1) iccpr; art. 3 icerd. See, for example, Velasquez Rodriguez v Honduras [1988] Inter-Am. c.h.r. (ser C) No. 4 para. 166. See also Roht-Arriaza N ‘State responsibility to investigate and prosecute grave human rights violations in international law’ (1990) 78(2) California Law Review 449; Orentlicher DF ‘Settling accounts: The duty to prosecute human rights violations of a prior regime’ (1991) 100(8) The Yale Law Journal 2537–615; Scharf M ‘The letter of the law: The scope of the international legal obligation to prosecute human rights crimes’ (1996) 59(4) Law and Contemporary Problems 41–61.

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are ­unwilling or unable to do so.27 Finally, it can be argued that international criminal institutions, in particularly the icc, have a duty to investigate and prosecute grave breaches of children’s human rights as the icc was established to ‘put an end to impunity for […] the most serious crimes’, which includes crimes committed against children. While there are potentially many ways to classify crimes committed against children,28 this research follows the categorisation adopted by the un to monitor and report on children and armed conflict: (1) killing or maiming of children; (2) recruitment or use of children as soldiers; (3) sexual violence against children; (4) attacks against schools or hospitals; (5) denial of humanitarian access for children; and (6) abduction of children.29 The reasons for using this sub-categorisation for the research are threefold. First, each of these categories is deeply rooted in international children’s rights standards, thereby strengthening the child rights-based approach adopted in this research. Secondly, the fact that the categorisation has been introduced and continues to be used by un agencies provides legitimacy to the categorisation. Finally, the six grave violations represent a wide spectrum of crimes committed against children, thereby reflecting the diverse experiences of children during armed conflict. Too often literature on accountability for crimes committed against children focuses primarily on the recruitment and use of child soldiers and sexual crimes, ignoring the fact that many children fall victim to other grave violations. While it is recognised that this categorisation does not cover all relevant rights of the child, it does widen the scope of accountability for crimes committed against children during armed conflict. In the case of the icc, which deals with a wide range of situations and cases, it was felt that this categorisation was most useful as it is based on international monitoring standards. Nevertheless, it is recognised that the categorisation may not adequately reflect the situation faced by children in certain contexts of armed conflict and researchers may consider adapting the list depending on the organisation or situation under consideration. It is further recognised here 27 28

29

Art. 17 Rome Statute. For example, Aptel has drawn a distinction between crimes committed specifically against children and ‘generic’ crimes affecting children (‘Children and accountability for international crimes: The contribution of international criminal courts’ (2010) unicef Innocenti Working Paper No. 2010–20); and Bakker categorises according to type of crime: genocide, torture, enforced disappearance, crimes against humanity and war crimes. (Bakker C ‘Prosecuting international crimes against children: The legal framework’ (2010) unicef Innocenti Working Paper No. 2010–13). un Secretary General Children and Armed Conflict (2005) Report of the Secretary General, unga 60th sess., un Doc para. 68.

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that, while the six grave violations provide a useful and credible categorisation for examining the jurisdiction and practice of the icc, the interpretation of findings relating to the practice of the court is inevitably subjective. International criminal cases are almost always highly complex cases, in which multiple crimes have been committed by multiple persons and in which prosecutors are faced with a myriad of financial, political, logistical, ethical and practical considerations when determining the charges. The exclusion, or inclusion, of charges for crimes committed against children must therefore be considered in the wider context of the case and situation as well as internal and external institutional factors. It must also be emphasised that the indicators included in this category are thus particularly relevant for child victims and witnesses of crimes committed in international armed conflict. However, this category in particular requires close consideration and adaptation if it is to be applied to contexts not affected by armed conflict, such as domestic criminal institutions. 3.2.2 Protection of Child Victims and Witnesses The second category of child-friendly justice elements comprises the socalled protection rights. There are three aspects to the principle of protection: (1) physical protection; (2) psychological protection; and (3) protection against unfair treatment. The Committee on the Rights of the Child recognises that ‘children’s special and dependent status creates real difficulties for them in pursuing remedies for breaches of their rights’ and that ‘particular attention [needs to be given] to ensuring that there are effective, child-sensitive procedures available to children’.30 The Committee also provides suggestions on how this should be done, including, amongst others, informality in the physical design of courts and the clothing of the judges and lawyers, videotaping of evidence, use of screens, separate waiting rooms for children and special preparation of child witnesses.31 Specifically, this category includes the following child-friendly justice indicators: • protection against non-discrimination;32 • the requirement to make the best interests of the child a primary consideration;33 30 31 32 33

Committee on the Rights of the Child, General Comment No. 5 (2003) 24. Hodgkin R & Newell P Implementation Handbook for the Convention on the Rights of the Child 3 ed (2007) 156. Art. 2 crc; art. 8(b) and Section vi Guidelines. Art. 3 crc; art. 8(c) Guidelines.

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the right to be treated with dignity and compassion;34 the right to safety;35 the right to effective assistance;36 the right to protection of privacy;37 and the right to be protected from hardship during justice processes.38

3.2.3 Participation of Child Victims and Witnesses The third category comprises children’s participatory rights. The progressive recognition that justice matters to victims resulted in reconsideration of the role of victims in judicial proceedings, and it is increasingly recognised that prosecutions can have a remedial function for victims only if they are able to take an active part in the proceedings. Moreover, participation is considered one of the guiding principles of the crc and is enshrined in several interrelated articles (arts. 12–17). The ability to participate in judicial proceedings is thus an integral element of child-friendly justice. Human rights treaty bodies have affirmed the importance of victim participation rights as they have consistently interpreted victims’ right to access to justice to include the opportunity to be involved in the proceedings to the extent required to safeguard their interests and so long as this does not infringe on the fair trial rights of the accused.39 Specifically, this category includes the following child-friendly justice indicators: • the right to be heard and to express views and concerns;40 and • the right to be informed.41 It must be noted that an integral part of the right to express views and to be heard is to allow child participants to express their views about their experience before, during and after their involvement with the Court. Such feedback ensures that, through ongoing monitoring, the use of the measurement matrix is in itself rights-oriented and will provide the necessary data for ongoing 34 35 36 37 38 39 40 41

Art. 39 crc; Section v Guidelines. Art. 13 cat; Section xii Guidelines. Arts. 20, 24(1), 24(2)(b) crc; Section ix Guidelines. Art. 16 crc; arts. 14 and 17 iccpr; Section x Guidelines. Arts. 12, 13 crc; art. 14 iccpr; Section xi Guidelines. For an overview of cases, see Spiga v ‘No redress without justice: Victims and international criminal law’ (2012) 10(5) Journal of International Criminal Justice 1377, fn. 23–5. Art. 12 crc, Section viii Guidelines. Arts. 13–17 crc; Section vii Guidelines.

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(self-)assessment. It must further be noted that the right to be informed includes the requirement that any communication with the child is provided in a manner and language that the child understands and is in accordance with the child’s evolving capacities. 3.2.4 Providing Reparation for Child Victims Reparation refers to measures taken to redress harm that victims may have suffered as a consequence of crimes committed against them to help them recover.42 Where possible, child victims should receive reparations in o­ rder to achieve full redress, reintegration and recovery.43 The procedures for ­obtaining reparation should be child-friendly and easily accessible for c­hildren. ­Reparations may take any one or more of the following non-exhaustive forms: restitution from the offender, compensation from victim compensation programmes, medical and/or psycho-social support or symbolic benefits to recognise ­suffering. Reparations can generally be distributed individually to victims or collectively to families and communities. The right to reparations has become a well-established human rights principle that is enshrined in various international human rights treaties and declarative documents.44 Reparations also serve to convey the message to victims that some justice has been achieved. The right to reparation is closely related to other child-friendly justice elements, including protection and participation. 3.2.5 Implementing Child-Friendly Justice – Institutional Measures The final element of child-friendly justice is of a slightly different nature to the other elements. This category does not constitute any specific right as such but rather outlines some of the institutional measures that are required for the successful implementation of children’s rights. This category is considered a necessary element of the child-friendly justice measurement matrix as it allows the researcher to identify the extent to which necessary measures of implementation have been adopted by the institution and the institutional areas most in need of reform. The institutional measures of implementation are directly derived from the international human rights instruments described earlier (for example, 42 43 44

unodc Handbook for Professionals and Policymakers on Justice Matters Involving Child Victims and Witnesses of Crime (2009) 96. un Economic and Social Council (ecosoc) Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime (2005) un Doc E/2005/20, Section xiii. For example, art. 8 udhr; arts. 2(3), 9(5) and 14(6) iccpr; art. 6 icerd; art. 39 crc; art. 14 cat.

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the crc and the Guidelines on Justice Matters involving Child Victims and Witnesses of Crime). In accordance with article 4 of the crc, States Parties are required to take ‘all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention’. While the Committee on the Rights of the Child has emphasised that there is not one specific legislative or administrative model for implementing the rights enshrined in the crc, it has proposed a wide range of strategies to ensure governments give appropriate priority and attention to children and to ensure effective implementation of the Convention.45 The unicef Implementation Handbook for the Convention on the Rights of the Child provides further guidance and elaboration on relevant measures of implementation.46 Moreover, the Guidelines also contain a dedicated section on implementation guidelines.47 The researcher closely reviewed these general measures of implementation and extracted those that were considered relevant for the realisation of child-friendly justice. Specifically, the research identified the following institutional measures of implementation: • ensuring existing laws, rules and procedures are in accordance with the provisions of the crc;48 • developing a comprehensive strategy for dealing with child victims and witnesses;49 • identification and coordination of responsible departments and staff across the icc, as well as relevant external bodies such as intermediaries, local civil society partners and child welfare agencies;50 • appropriate budget allocation;51 and • ensuring recruitment of specialised staff as well as development of appropriate internal training and awareness-raising.52 It must be noted that, while article 4 refers specifically to the obligations of States Parties, the Committee on the Rights of the Child has made it clear that 45 46 47 48 49 50 51 52

Committee on the Rights of the Child, General Comment No. 5 (2003). Hodgkin R & Newell P Implementation Handbook for the Convention on the Rights of the Child 3 ed (2007). un Economic and Social Council (ecosoc) Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime (2005) un Doc E/2005/20, arts. 40–6. Art. 4 crc; General Comment No. 5, para. 18. Art. 4 crc; General Comment No. 5, paras. 29–33; Chapter xv, art. 45 Guidelines. Art. 4 crc; General Comment No. 5, paras. 39; Chapter xv, arts. 43–4 Guidelines. Art. 4 crc ; General Comment No. 5, paras. 51. Arts. 4 and 42 crc; General Comment No. 5; Chapter xv, arts. 40–2 Guidelines.

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the responsibility for implementation of the crc extends to all levels of society.53 Although these ‘levels of society’ are not specified, it can be reasonably assumed that this includes both national and international institutions. 3.3 Levels of Compliance The second dimension of the matrix consists of the levels of ‘compliance’. This dimension distinguishes between compliance in principle, in law, in policy and in practice. Making such a distinction between different levels of compliance helps identify whether it is necessary to change the law or policy itself, its interpretation or the practice in applying the law or policy and therefore who and what to put pressure on in order to change it. Existing models of human rights (or children’s rights) analysis propose different levels of analysis. For example, Tod Landman proposes a three-tiered structure of ‘in principle, in practice and in policy’, whereas the United Nations Office of the High Commissioner on Human Rights (ohchr) differentiates between ‘structural – process – outcome’ indicators.54 While both models provide useful frameworks for analysis, it was felt that neither was fully appropriate for examining institutions. These existing matrices are most commonly used for monitoring state compliance with international human rights standards and are therefore not fully transferrable to monitoring of institutions. For example, the in principle level of analysis of Landman’s approach generally relates to the state’s legal and policy instruments that reflect the ratification and adoption of international law. As institutions are not party to international treaties and therefore have no (formal) legal obligation in relation to these standards, this ‘measurement level’ cannot be fully translated to institutions. Nevertheless, the author believes that there is much merit to such a multilevel analysis as it disaggregates the data and allows the researcher to identify specific laws, policies, departments or phases of an institution in need of particular reform. The child-friendly measurement matrix thus draws on Landman’s approach, adjusted to the context under examination. The first level of examination looks at the in principle commitment of the institution towards protecting children. Unlike the other levels it is not necessary to break this ‘level’ down into the five categories of child-friendly justice elements as the level reflects a general overarching commitment across all areas of the institution and is therefore not included in the matrix. The in principle 53 54

Committee on the Rights of the Child, General Comment No. 5 (2003). Landman T ‘Measuring human rights: Principle, practice, and policy’ (2004) 26(4) Human Rights Quarterly 906 and ohchr ‘Human Rights Indicators – Main Features of ohchr Conceptual and Methodological Framework’.

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commitment may be reflected, for example, in speeches from high level staff (prosecutors, judges and so on), mission statements and founding documents. The second level identifies and examines the legal framework in relation to the relevant child rights standards. In other words, it examines the extent to which the relevant child rights standards are reflected in the legal framework applicable to the institution. In the case of judicial institutions, this entails identifying and examining all relevant laws pertaining to the identified categories of child-friendly justice standards. The third level examines the policies and procedures of the institution and the extent to which these incorporate and reflect relevant child-friendly justice standards. Finally, it is important to look beyond the formal commitment towards children’s rights standards in the legal framework and policy documents and also look at whether and how this is being translated into practice. This level therefore examines the actual enjoyment of rights by children in practice. It must be noted that the in practice indicators are often quantifiable and largely guided by the experience of children involved with the institution. However, in the light of ethical, logistical and practical issues, it may not always be possible or even desirable to involve children and interview them in relation to their experience. It is argued here that without such initial data it is nevertheless possible to get a good understanding of the practice of the institution by basing the research on other information sources such as thirdparty assessments, personal experience from adults involved with the institutions and other data generated by the institution (for example, court decisions, statistical data on involvement of children or outputs achieved). Nonetheless, the requirement that children are able to safely and meaningfully express their views about their participation in the judicial process can be considered an integral part of the participatory rights of child victims and witnesses, and should be incorporated by the Court in standard practice. Such data may then serve as necessary data for ongoing (self-)assessment of the Court in the future. 4

Strengths and Weaknesses

The strength of the measurement matrix introduced in this chapter lies in its ability to allow clear and structured recording of data to enable the researcher to clearly identify gaps in the realisation of relevant children’s rights standards. Through the disaggregation of the data into different levels of compliance, the researcher can also easily identify whether the problem lies in the law, the policy or the translation of these laws or policies into practice. Moreover, it is believed that the five categories of indicators used in the matrix cover all

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relevant aspects of child-friendly justice; the fact that these indicators are derived directly from authoritative international human rights instruments, including the crc and the Guidelines, gives the matrix additional robustness and authority. Despite the strengths of the matrix, the author did identify some weaknesses in its use. Firstly, the language of some of the child-friendly justice standards, such as ‘best interests of the child’ and ‘effective assistance’, is vague or broad. While there is clearly some benefit to the use of broad wording so as not to be too restrictive and to provide flexibility in terms of application, the vague wording also reduces its effectiveness. For example, while it is easy to determine the extent to which the principle of the best interests of the child victim and witness is incorporated into law and policy, it is far more difficult to determine the extent to which this is translated into practice. Moreover, the wording of the right to ‘effective assistance’ requires not only that child victims and witnesses are provided with assistance but also that this is ‘effective’ – the interpretation of which is largely subjective and therefore much more difficult to determine than the mere availability of assistance. Efforts must therefore be made to carefully consider these elements to ensure that relevant data are interpreted as appropriately as possible. Secondly, as noted previously, the child-friendly justice standards have been categorised in a simplified manner to assist the researcher in recording and analysing data. In reality, however, the elements (or groups of elements) are closely interrelated and the categorisation does not capture the complexity and interrelatedness of the rights. The matrix therefore serves merely as a tool for initiating and conducting the data collection and recording, but the researcher will be required to look beyond the simplified categorisation and analyse the findings with consideration for the complexity and interrelatedness of the indicators. 5

Using the Measurement Matrix

The previous section presented a basic outline of the child-friendly justice measurement matrix developed specifically for conducting a children’s rights audit of the icc. This section clarifies how the matrix can be used and adapted for use in different contexts. In the case of the icc, the author used the matrix primarily to record qualitative data. This choice stems from the observation that there are many nuances between the various indicators which cannot simply be answered by ‘yes’, ‘no’ or a numeric indicator. Moreover, as the cases at the icc have been limited (and thus the quantitative data are limited) it was felt that qualitative

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data would better reflect the complex reality of children’s rights adherence by the icc. Nevertheless, it is envisaged that the matrix could also be used for recording quantitative data or some sort of numeric scale in situations where the number of cases or individuals involved with cases is much higher. Although it was felt that the use of qualitative data was the most appropriate path in this instance, the vast quantity of data posed a challenge as it resulted in a very lengthy and elaborate matrix. For the purpose of clarity and in order to maintain an overview, the author thus separated each child-friendly justice element into a separate table. Despite the lengthiness of each table, using the matrix nevertheless did help to structure and record the vast quantity of data. While the matrix was specifically developed for monitoring the icc, it is envisaged that with some modification it can also be used to monitor domestic criminal institutions or even non-judicial institutions. The adjustments will depend on the institution to be examined; however, a few general observations can be made. If the matrix is to be applied to domestic criminal justice institutions several adjustments will need to be made as there will be different organisational dynamics at play. First, it will be necessary to adjust the category of crimes committed against children to reflect crimes committed in a domestic setting. Moreover, the expansiveness of the icc’s operation across various continents as well as its unique funding structure also influences the elements identified for examination. These elements too, then, will require adaptation if applied to a domestic setting. If the matrix is to be applied to other (non-judicial) institutions, further modification would be required. ­Depending on the nature of the organisation, different children’s rights standards and categorisation would be applicable. While certain elements such as the overarching principles of best interest, non-discrimination and participation would be the same, the variable child-friendly elements would be determined by the ­nature of the institution or the service provided. It is envisaged that the measurement matrix will be of interest to anyone – for example, academics, policy-makers, human rights-monitoring institutions and other external entities – with an interest in conducting a children’s rights audit of a criminal institution (or other institution) with the purpose of using the findings as an advocacy tool for change. It is also hoped that the matrix may be adopted by institutions themselves for (ongoing) self-assessment. 6 Conclusion Children face many difficulties when they come in contact with the criminal justice system. In particular, the complexity and adult-orientation of c­ riminal

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justice procedures make it difficult for children to access and take part in proceedings. Moreover, many factors, including the intimidating nature of proceedings as well as lack of information about available proceedings and services, have the potential to cause significant stress and anxiety for child victims and witnesses. Fortunately, there has been increasing interest in the treatment of child victims and witnesses in (international) criminal courts, and a myriad of guidelines, standards and treaties have been developed at the international, regional and national level setting out generally accepted norms for the treatment of child victims and witnesses. Taken together, these documents outline the elements of ‘child-friendly justice’. In essence, as previously stated, child-friendly justice is a justice system that aims to ensure the respect and effective implementation of all relevant children rights and standards at the highest attainable level. The measurement matrix introduced in this chapter provides a useful tool for using the crc and related international children’s rights standards to analyse how an institution operates in relation to these norms and to identify areas in need of reform to improve the experience for children involved with such institutions. Disaggregating the data according to different categories of childfriendly justice as well as different levels of analysis, as proposed by the matrix, allows the researcher to identified specific areas in need of reform. It is hoped that this tool will inspire similar work in this area, as it is believed that examining how institutions operate in relation to children’s rights is a crucial, but often neglected, step towards their realisation. Bibliography Books

Aptel C & Ladisch V Through a New Lens: A Child-Sensitive Approach to Transitional Justice (2011) New York: Interational Centre for Transitional Justice. Arts K & Popovski V (eds) International Criminal Accountability and the Rights of Children (2006) Cambridge: Cambridge University Press. Hodgkin R & Newell P Implementation Handbook for the Convention on the Rights of the Child 3 ed (2007) New York: UNICEF. Kilkelly U A Children’s Rights Analysis of Investigations (2011) Dublin: Ombudsman for Children. Kilkelly U The Children’s Court: A Children’s Rights Audit (2005). Landman T & Carvalho E Measuring Human Rights (2010) London: Routledge. Van Bueren G The International Law on the Rights of the Child (1998) Dordrecht: Martinus Nijhoff.

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Chapters in Books

Kilkelly U ‘Using the Convention on the Rights of the Child in law and policy’ in Invernizzi A & Williams J (eds) The Human Rights of Children: From Visions to Implementation (2011) 179–218 Ashgate.

Journal Articles

Aldana-Pindell R ‘An emerging universality of justiciable victims’ rights in the criminal process to curtail impunity for state-sponsored crimes’ (2004) 26(3) Human Rights Quarterly 605–85. Aptel C ‘Children and accountability for international crimes: The contribution of international criminal courts’ (2010) UNICEF Innocenti Working Paper No. 2010–20. Bakker C ‘Prosecuting international crimes against children: The legal framework’ (2010) UNICEF Innocenti Working Paper No. 2010–13. Carvalho E ‘Measuring children’s rights: An alternative approach’ (2008) 16(4) International Journal of Children’s Rights 545–63. Landman T ‘Measuring human rights: Principle, practice, and policy’ (2004) 26(4) Human Rights Quarterly 906–31. Lundy L & Kilkelly U ‘Children’s rights in action: Using the UN Convention on the Rights of the Child as an auditing tool’ (2006) 18(3) Child and Family Law Quarterly 331–50. Lundy L & McEvoy L ‘Developing outcomes for educational services: A children’s rights-based approach’ (2009) 1(1) Effective Education 43–60. McGoldrick D ‘The United Nations Convention on the Rights of the Child’ (1991) 5(2) International Journal of Law and the Family 132–69. Orentlicher DF ‘Settling accounts: The duty to prosecute human rights violations of a prior regime’ (1991) 100(8) The Yale Law Journal 2537–615. Roht-Arriaza N ‘State responsibility to investigate and prosecute grave human rights violations in international law’ (1990) 78(2) California Law Review 451–513. Scharf M ‘The letter of the law: The scope of the international legal obligation to prosecute human rights crimes’ (1996) 59(4) Law and Contemporary Problems 41–61. Spiga V ‘No redress without justice: Victims and international criminal law’ (2012) 10(5) Journal of International Criminal Justice 1377–94. Tobin JW ‘Judging the judges: Are they adopting the rights approach in matters involving children?’ (2009) 33(2) Melbourne University Law Review 579–625.

International Publications

Committee on the Rights of the Child, General Comment No. 5 on general measures of implementation of the Convention on the Rights of the Child (2003) UN Doc Crc/ Gc/2003/5. Council of Europe, Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice (2010) Strasbourg: Council of Europe Publishing.

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Food and Agriculture Organization of the United Nations (FAO) Methods to Monitor the Human Right to Adequate Food, Vol II: An Overview of Approaches and Tools (2008) Rome. Human Rights Information and Documentation Systems (HURIDOCS) What is Monitoring (2003) Versoix. UN Economic and Social Council (ECOSOC) Guidelines for Action on Children in the Criminal Justice System (1997). UN Economic and Social Council (ECOSOC) Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime (2005) UN Doc E/2005/20. UN Secretary General Children and Armed Conflict (2005) Report of the Secretary General, UNGA 60th sess., UN Doc S/2005/72. UN Secretary General Guidance Note of the Secretary General: UN Approach to Justice for Children (2008). UNICEF 25 Years of the Convention of the Rights of the Child: Is the World a Better Place for Children? (2014) New York: UNICEF. UNICEF Building Child-friendly Cities: A Framework for Action (2004) Florence: UNICEF Innocenti Research Centre. United Nations Office of the High Commissioner on Human Rights (OHCHR) Manual on Human Rights Monitoring, Monitoring Economic, Social and Cultural Rights (2001) OHCHR. UNODC Handbook for Professionals and Policymakers on Justice Matters Involving Child Victims and Witnesses of Crime (2009).

Theses

Beckmann-Hamzei H The Child in ICC Proceedings (unpublished PhD thesis, Leiden University, 2015). Chamberlain C Children and the International Criminal Court: Analysis of the Rome Statute through a Children’s Rights Perspective (PhD thesis, Leiden University, 2014).

Cases

Velasquez Rodriguez v Honduras [1988] Inter-Am. c.h.r. (ser C) No. 4 para. 166.

Internet Sources

Bissell S ‘25 Years After Rights Convention, Children Still Need more Protection’ IPS News 14 November 2014, available at http://www.ipsnews.net/2014/11/25-years-after -rights-convention-children-still-need-more-protection/ (accessed 22 October 2015). OHCHR ‘Human Rights Indicators – Main Features of OHCHR Conceptual and Methodological Framework’, available at http://www.ohchr.org/EN/Issues/Indicators/ Pages/framework.aspx (accessed 5 January 2015).

chapter 29

Children behind Belgian Bars: Rights and Resistance against the Pains of Imprisonment Esther de Graaf, Jenneke Christiaens and Els Dumortier1 Abstract When children are deprived of their liberty, they are in a vulnerable position. But thanks to the crc, children’s rights have been enshrined for the last 25 years. These rights can play an important role in protecting children during their confinement, yet these rights are still too often violated. Therefore we want to point to the importance of the right to complain. This right can be used as an important instrument against harshness or arbitrariness in youth institutions and/or unfair or inhumane treatment. However, it remains unclear how this (formal or informal) right actually plays a role in daily detention practices. In this chapter we emphasise the need for more empirical research that focuses on the situation of children deprived of their liberty. We want to gain more insight into how children experience their time in detention. We also want to understand how children’s rights, specifically the right to complain, operate in daily policy and practice. At the end of the chapter we provide an example of this kind of research, which we are currently conducting in Belgium and the Netherlands.

1 Introduction Incarceration is the classic answer to juvenile delinquency. When a juvenile commits a crime, one of the possible, and often preferred, responses is confinement in a closed setting. However, one can question whether and when confinement is in line with the un Convention on the Rights of the Child (crc), the most widely ratified human rights treaty in the world. After all, its article 37(b) states that the imprisonment of a child must be used only as a measure of last resort and for the shortest appropriate period of time.2 Children’s rights can be seen as an important instrument in protecting children not only against confinement as such, but also – if confinement is deemed necessary – against 1 The authors wish to thank Professors Ton Liefaard and Julia Sloth-Nielsen for their constructive reflections on this chapter. 2 Art. 37 crc, United Nations General Assembly Resolution 44/25 (1989).

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‘harsh’ or ‘child-unfriendly’ confinement. Yet although the crc recently celebrated its twenty-fifth anniversary, violations of children’s rights continue to be very much a reality in the policy and practice of numerous Member States; according to Goldson and Muncie, a ‘regressive movement’ can be discerned.3 It thus remains of the utmost importance to stimulate future research initiatives on children’s rights in order to understand how they operate (or fail to do so) in daily policy and practice. The aim of this chapter is to underscore the need for research concerned more specifically with the situation of children deprived of their liberty. In particular, there is a need for empirical evidence to test the notion that the right to complain is an effective practical remedy to redress (alleged) violations. To gain a better understanding of the setting in which the right to complain has to operate, Section 1 investigates (Belgian) practices regarding the ‘placement’ of delinquent youngsters, with the focus on important findings in youth criminological research about the ‘pains of imprisonment’. Thereafter, in Section 2 we explain how juveniles experience and try to resist these pains. Youngsters adopt different strategies to cope with detention and the pains it causes. One formal and recognised strategy is the right to complain, which can be seen as a shield against arbitrariness in institutions and/or unfair or inhumane treatment. In Section 3 we analyse this right from a more judicial point of view. According to international standards and children’s rights advocates, the right to complain is fundamental to the effective protection of children deprived of their liberty. However, little is known of how this (formal) right forms part of and shapes daily detention practices, and thus of how ‘law in books’ compares and contrasts with ‘law in action’ or ‘action with law’. As such, in Section 4 we highlight the need for research that focuses on the complex nexus between juvenile detention, the ‘pains’ of imprisonment, ‘resistance’ and the role of children rights. In our opinion, the research agenda until 2040 – the year of the crc’s fiftieth anniversary – should include critical research which is able to describe, understand and provide insight into how doing children’s rights meets (or does not meet) these rights’ ‘stated goals’ of protecting children against unwanted and/or unnecessary interventions. In other words, to what extent does the strengthening of children’s formal legal position lead to an actual and observable strengthening of children’s practical position? What kind of research can or should we conduct to investigate these questions? 3 Goldson B & Muncie J ‘Children’s human rights and youth justice with integrity’ in Goldson B & Muncie J (eds) Youth Crime and Justice 2 ed (2015) Chap. 14.

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The chapter ends by considering research currently being conducted in Belgium and the Netherlands. We hope it can serve as an example that will guide and inspire the research agenda for 2040. However, the methodological challenges one has to deal with when conducting such research are diverse. 2

Children behind Belgian Bars: A History

The placement of children in detention as we know it today has a long history. Until the beginning of the nineteenth century, children and adults in Belgium were imprisoned together. It is only since the mid-nineteenth century that their separation within prisons became an important issue in penological debates. Attention to the issue eventuated in the first Belgian youth prison for boys, in Saint-Hubert in 1844,4 a detention practice that in turn led to the introduction of a separate penal system for children at the start of the twentieth century.5 The Belgian child/youth justice system is hence an example of the (European) child welfare model, one in which ‘protective’ and ‘re-educative’ interventions are made in respect of both delinquent and non-delinquent minors.6 Until the present day, the Belgian Youth Justice system has been based on the fundamental principles of this model. The key phrases remain ‘­re-education’, ‘protection’ and ‘the best interests of the juvenile offender’.7 This is why we have to highlight an important change in terminology that occurred over time. Today we do not speak of youth prisons but ‘reform schools’ or ‘institutions’; a cell became a ‘room’ and an inmate a ‘pupil’. It is a shift in discourse which some refer to as ‘mystified language’.8 Whereas the institution Saint-Hubert established was still called ‘maison pénitentiaire pour jeunes délinquants’ (‘­prisons for young offenders’), by the end of the nineteenth century all public ‘prisons’ for young offenders were known as ‘écoles de bienfaissance’ (‘schools of beneficence’), becoming in the twentieth century ‘public reform schools’ (rijksopvoedingsgestichten) and losing all reference to their penitentiary roots.9 Hence, from a legal perspective, youngsters are not ‘imprisoned’ but ‘placed’. Today, they are placed in Special Institutions of the Community (gemeenscha 4 5 6 7

Vanlandschoot R Sluit ze op…: Jongeren in de Criminaliteit, 1400 tot Nu 171. Kinderbeschermingswet of 1912. Christiaens J De Geboorte van de Jeugddelinquent (1999) Chap. 1. Chistiaens J & Weijers I ‘Een historisch perspectief op jeugdcriminaliteit’ in Weijers I & Eliaerts C (eds) Jeugdcriminologie. Achtergronden van jeugdcriminaliteit (2008) 23. 8 Van de Kerckhove M ‘Des mesures répressives aux mesures de sûreté et de protection. Réflexions sur le pouvoir mystificateur du langage’ (1977) Revue de droit pénal 245–79. 9 Christiaens J De Geboorte van de Jeugddelinquent (1999) Chap. 3.

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psinstellingen),10 and this remains one of the important measures upon which justice courts can decide. However, although the Belgian Youth Protection Act describes the placement of youngsters in an institution (with a closed or open regime) as an educational protection measure (and not as detention), it remains a ‘deprivation of liberty’ as stated and described by Rule 11(b) of the Havana Rules: The deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority.11 Moreover, the question arises whether or not these youth protection institutions should be understood as ‘total institutions’. According to Goffman, ‘A total institution may be defined as a place of residence and work where a large number of like-situated individuals cut off from the wider society for an appreciate period of time, together lead an enclosed, formally administered round of life.’ Furthermore, he argued that ‘[p]risons serve as a clear example, providing we appreciate that what is prison-like about prisons is found in institutions whose members have broken no laws’. Considered in the light of Goffman’s arguments, ‘placed’ juveniles today still seem to be subjected to a total institution, since everything appears to be regulated for them. Time schedules are fixed; there are numerous rules; all decisions are taken for the youngsters; and, above all, they seem to be allowed little room for personal initiative. As a result, there is a strong sense of lost autonomy.12 In this vein, Jaspart’s ethnographic research show that time and space are even more controlled in youth institutions than in prisons or hospitals. In Belgian youth institutions the daily routines and programmes are strictly planned and timed. There is almost no empty time (temps vide). In addition to the structured activities in these institutions, there are also many periods of isolation and inactivity.13 This inactivity can cause boredom and give young people the feeling that they are ‘doing time’. As Bengtsson notes, ‘boredom sits in the walls and 10 11 12 13

The state reform in the 1980s bringing the institutions under the competences of the Flemish and French speaking Community instead of the Belgian federal state. The Havana Rules of 1990; emphasis added. Goffman E Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (1961) Introdution and Chapter 1. Jaspart A ‘Chronique de criminologie: enfermement des jeunes et temporalités. Entre cadence engourdissante et réveil angoissé’ (2011) Revue de droit pénal et de criminologie 366.

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manifests­[itself] in numerous ways in the social practices of those in confinement’. Bengtsson’s research shows that boredom constitutes the core of everyday experience for these young people.14 Finally, one can ask whether well-established scientific insights about life in adult prisons, such as Sykes’s famous ‘pains of imprisonment’, are still relevant to research into juvenile detention facilities.15 3

Children’s Pains of Imprisonment

Even though rehabilitation is the ultimate goal of the child welfare institution and children and youngsters may have the best chance of rehabilitation,16 as Dumon Tak – a journalist and writer of non-fiction books for children – ­observes in her book on youth detention, juveniles indicate that, when placed in an institution, one becomes part of a scenario from which it is difficult to escape.17 Juveniles deal with this scenario in different ways. In the literature there are two central theories that explain how they adapt to the institutional life: the deprivation theory and the importation theory. According to the deprivation theory, the degree of adjustment depends on the characteristics of the correctional environment. For example, the deprivation of basic human needs in prison can affect adaptation to imprisonment. The importation theory, on the other hand, assumes that the degree of adaptation is determined by the characteristics of the prisoners. For example, offenders bring their street attitudes into prison, and this can have an influence on inmate culture.18 This 14 15 16

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Bengtsson T ‘Boredom and action experiences from youth confinement’ (2012) Journal of Contemporary Ethnography 527. Sykes G The Society of Captives: A Study of a Maximum Security Prison (1958) 285–94. Gover A, Mackenzie D & Armstrong G ‘Importation and deprivation explanations of juveniles’ adjustment to correctional facilities’ (2000) International Journal of Offender Therapy and Comparative Criminology 450. Dumon Tak B Rotjongens: Het Leven in de Jeugdgevangenis (2013) 23. Van der Laan A & Eichelsheim V ‘Juvenile adaptation to imprisonment: Feelings of safety, autonomy and well-being, and behaviour in prison’ (2013) European Journal of Criminology 426. See also Delisi M et al. ‘The cycle of violence behind bars: Traumatization and institutional misconduct among juvenile delinquents in confinement’ (2010) Youth Violence and Juvenile Justice 107–21; Dhami M, Ayton P & Loewenstein G ‘Adaptation to imprisonment: indigenous or imported?’ (2007) Criminal Justice and Behavior 1085–100; Gover A, Mackenzie D & Armstrong G ‘Importation and deprivation explanations of juveniles’ adjustment to correctional facilities’ (2000) International Journal of Offender Therapy and Comparative Criminology 450–67; Hochsteler A & Delisi M ‘Importation, deprivation and varieties of serving time: An integrated-lifestyle-exposure model of prison offending’ (2005) Journal of Criminal Justice 257–66; Tasca M, Griffin L & Rodriguez N ‘The effect of

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line of research indicates that the degree of adjustment to institutional life can depend on several factors. A study on a maximum-security facility for young people in the United States shows that the first lesson all inmates had to learn was to survive the daily frustrations and challenges inherent of the structure of the institution. One of the boys explained that ‘he hated the fact that he had to pound on his locked door to get out to go to the bathroom, how everyone else controls your life when you are locked up’. These feelings clearly express a loss of autonomy,19 and this example is in line with what Sykes has described as one of the pains of imprisonment. Prisoners are deprived not only of their liberty but goods and services, heterosexual relationships, autonomy and security.20 Research on these pains of imprisonment focuses on adult prisoners, omitting certain categories of inmates, such as young offenders.21 Cox, however, indicates that there is no reason not to investigate these pains of imprisonment for juveniles deprived of their liberty.22 3.1 Resisting Pains A good deal of research makes it clear that youngsters develop different strategies to survive their time in detention. In exploring these strategies, Cox introduces two concepts: ‘doing programme’ and ‘doing me’. The first strategy involves compliance with the institution’s rules and engagement with its discourses. Young inmates indicated that when they made this strategy their own, it led to some relief. By behaving well and following the programme, they hoped to be released earlier or they had the feeling they were already closer to freedom. When youngsters submitted and followed the programme, relief from the ‘pains of imprisonment’ could be observed. In the ‘doing me’ strategy, young detainees engage in a process of self-change. They focus on changing themselves and do not let other young people distract them from this.23

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importation and deprivation factors on violent misconduct: An examination of black and Latino youth in prison’ (2010) Youth Violence and Juvenile Justice 234–49. Inderbitzin M ‘Lessons from a juvenile training school: Survival and growth’ (2006) Journal of Adolescent Research 13. Sykes G The Society of Captives: A Study of a Maximum Security Prison (1958) 285–94. Liebeling A ‘Prison suicide and prisoner coping’ in Tonry M & Petersilia J (eds) Prisons: Crime and Justice: A Review of Research (1999) 288. Cox A ‘Doing the programme or doing me? The pains of youth imprisonment’ (2011) Punishment & Society 592–610. Cox A ‘Doing the programme or doing me? The pains of youth imprisonment’ (2011) Punishment & Society 596–597. See also: Abrams L & Hyun A ‘Mapping a process of negotiated identity among incarcerated male juvenile offenders’ (2009) Youth Society 38–40.

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Juveniles search for ways to make their time in the institution more bearable. Although prison is a controlled environment, it is still fairly easy to fake a ‘good attitude’. Youngsters are quick to figure out how things work in the institution and what a ‘good attitude’ looks like, and they dissemble this attitude because they want to survive their time in the institution.24 In Cox’s research, juveniles explain that they are ‘faking it’ as a way of resisting what they felt to be the absurdity and illegitimacy of the system or as way of finding a pathway to change.25 However, there are further survival strategies, including, as Inderbitzin suggests, building and engaging in relationships with people in the institution.26 3.2 A Gap in the Existing Research There is an impressive body of research on prisoners, their perspectives on prison life and the impact and pains of imprisonment.27 As mentioned, these studies mainly focus on adults: less is known about how juveniles experience detention. Jaspart shows that in Belgium there is an important gap in our knowledge of the day-to-day reality of juvenile institutions that have closed regimes.28 Goldson emphasises that at international level there is a lack of high quality qualitative research that focuses on the perspectives of children and young people at all stages of the juvenile justice process.29 Wilson’s research shows clearly that young people also express their resistance to imprisonment and to the juvenile justice system. It is precisely this resistance that has been ignored most of the time.30 To gain insight into young people’s experience of submission and resistance in detention, it is important to understand both the 24 25 26 27 28

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Nurse A Locked Up, Locked Out: Young Men in the Juvenile Justice System (2010) 53–85. Cox A ‘Doing the programme or doing me? The pains of youth imprisonment’ (2011) Punishment & Society 602–03. Inderbitzin M ‘Guardians of the state’s problem children: An ethnographic study of staff members in a juvenile correctional facility’ (2006) The Prison Journal 433. Cohen S & Taylor L Psychological Survival: The Experience of Long-Term Imprisonment (1972) 217; Sykes G The Society of Captives: A Study of a Maximum Security Prison (1958) 161. Jaspart A ‘Vivre le temps d’un enfermement. Premiers résultats d’une enquête de terrain réalisée dans trois centres fermés pour mineurs délinquants en Belgique’ (2010) Déviance et Société 217. Goldson B ‘Children, young people and the contemporary penal landscape’ in Dockley A & Loader I (eds) The Penal Landscape: The Howard League Guide to Criminal Justice in England and Wales (2013) 212. Wilson D ‘“Keeping quiet” or “going nuts”: Some emerging strategies used by young black people in custody at a time of childhood being re-constructed’ (2003) The Howard Journal 417.

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daily reality of institutional life and the practical challenges of re-educating a confined child. These insights could lead to adaptations in existing policy that facilitate juveniles’ return to society and offer hope of their greater conformity in future.31 While a number of recent Belgian studies have indeed focused on the experience of juveniles in detention,32 none has looked in depth at strategies of submission or resistance. Understanding resistance can enlarge our understanding of institutional practice from the perspective of prisoners. It can shed light on what Scott calls the ‘infrapolitics of the weak’: small forms of resistance that show how youngsters deal actively with their imprisonment.33 This is an important element in Wilson’s research too, where juveniles describe resistance as ‘playing the game’ and using two strategies to cope with detention: ‘keeping quiet’ and ‘going nuts’.34 4

Children’s Rights: A Bulwark against ‘harsh’ Detention?

Human rights and children’s rights must be understood together as an important ‘player’ in contemporary detention practices and in the abovementioned debate on the pains of imprisonment in child institutions. Young people who are deprived of their liberty are in a vulnerable position, and children’s rights can play an important role in protecting children during their confinement. Indeed, at a European and international level, several rules and standards provide a framework to shape detention practices for young people and to protect the latter from the ‘harshness’ of detention. Article 5 of the European Convention of Human Rights (echr) and article 37 of the crc are particularly relevant here.35 According to article 5(1)(d) of the echr, the detention 31 32

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Inderbitzin M ‘Growing up behind bars: An ethnographic study of adolescent inmates in a cottage for violent offenders’ (2005) Journal of Offender Rehabilitation 1. Delens-Ravier I & Thibaut C ‘Du tribunal de la jeunesse au placement en ippj: la parole des jeunes’ (2003) Revue de droit pénal et criminologie 22–69; Jaspart A L’enfermement des mineurs délinquants au centre fédéral « De Grubbe » et dans les deux institutions publiques à régime fermé pour garçons en Communauté française (Fraipont et BraineLe-Château) (Doctoral thesis, Université Libre de Bruxelles, 2010). Christiaens J ‘Testing the limits: Redefining resistance in a Belgian boys’ prison, 1895–1905’ in Cox P & Shore H (eds) Becoming Delinquent: British and European Youth (2002) 89–90. Wilson D ‘“Keeping quiet” or “going nuts”: Strategies used by young, black men in custody’ (2004) The Howard Journal 317–30. The European Convention of Human Rights (1950); The Convention on the Rights of the Child, United Nations General Assembly Resolution 44/25 (1989).

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of a minor is only acceptable for the purpose of educational supervision or for bringing him before a competent legal authority. The educational aims are explicitly mentioned as a fundamental human right for detained children.36 Furthermore, according to article 37(a) of the crc, States Parties shall ensure that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. According to article 37(b), the detention of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. There are also international human rights standards aimed at protecting the rights of children when they are deprived of their liberty. According to Liefaard, two things are vital for the protection of the rights of the child deprived of his or her liberty. First, there should be effective inspection and supervision mechanisms in order to make life inside the institution more transparent. Secondly, there should be effective mechanisms for the child to challenge violations of his or her rights (the so-called ‘right to complain’). Several international instruments – the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, the cpt (Committee for Prevention of Torture) Standards and the crc37 – call for the introduction of effective inspection and supervision mechanisms and also point to the importance of effective complaints mechanisms.38 Other guidelines and standards have been developed to complement these conventions, namely the un Havana Rules, the un General Comment No. 10 on children’s rights in juvenile justice, and the European Rules for juvenile offenders subject to sanctions or measures.39 In addition, the Standard Minimum Rules for the Treatment of Prisoners, the cpt Standards and the child-friendly justice guidelines can play an important role in giving recommendations and guidelines for national detention practices.40 At the international level, there are several standards regarding the way in which children’s rights should be 36 37

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The European Convention of Human Rights (1950). United Nations Rules for the Protection of Juveniles Deprived of their Liberty of 1990; cpt Standards of 2015; The Convention on the Rights of the Child, United Nations General Assembly Resolution 44/25 (1989). Liefaard T ‘Effective remedies: Inspection, supervision and complaints procedures’ in Liefaard T (ed) Deprivation of Liberty of Children in Light of International Human Rights Law and Standards 1 ed (2008) 328–37. The Havana Rules of 1990; General Comment No. 10 on children’s rights in juvenile justice of 2007; the European Rules for juvenile offenders subject to sanctions or measures of 2008. The Standard Minimum Rules for the Treatment of Prisoners of 2015; cpt Standards of 2015.

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implemented in the everyday detention practice of young people. However, we must be aware of the fact that every country deals with this differently. Hence, from a human and children’s rights perspective, one could claim that long and/or ‘harsh’ detentions are not in accordance with the human and children’s rights of young offenders. Furthermore, several guidelines and standards are available for Member States to adapt their practices accordingly. However, as Goldson and Kilkelly argue, there is a fundamental dissonance between international human rights and the daily experience of juveniles in detention. These authors also point out that ‘it is clear that giving legal protection to the rights of child prisoners, does not, in itself, guarantee that the same rights will be upheld in practice’.41 Ratification of the crc does not guarantee correct application in practice, and the formal existence of children’s rights (that is, children’s rights in books) is not enough. As such, it is especially important to examine the way in which these rights are implemented in actuality. Thus, our research in the future on child detention practices focuses on investigating and analysing whether and how children’s rights shape daily life in child institutions, particularly the right of the detained child to complain. After 25 years of the crc, we can say there is international recognition of the position of the child deprived of his or her liberty. Furthermore, the right to complain has gained importance. Juveniles deprived of their liberty are vulnerable and at particular risk of being subjected to violence. According to the un Violence study, monitoring and complaints mechanisms are essential to prevent violence in institutions.42 The right to complain is considered an important instrument to protect children’s rights in detention. But, as already indicated, unfortunately little is known about the practice of the right to complain. In view of the impending global study on deprivation of liberty,43 it would be valuable to call for more research into this area. The 2040 children’s rights research agenda should, at the least, include empirical research focusing on the abovementioned questions. 4.1 The Child’s Right to Complain The right to complain can be seen as an important instrument against ‘harshness’ and/or arbitrariness in child institutions. However, Dutch research ­indicates that the assumption that young people in an institution will stand 41

Goldson B & Kilkelly U ‘International human rights standards and child imprisonment: Potentialities and limitations’ (2013) International Journal of Children’s Rights 356–57. 42 The United Nations Secretary-General’s Study on Violence against Children of 2006. 43 See http://www.childrendeprivedofliberty.info.

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up for their rights by lodging complaints has little theoretical or empirical ­underpinning.44 As Liefaard argues, the government also has the responsibility to guarantee that the rights of juveniles are respected; this, is, in other words, a shared responsibility.45 Hence the Netherlands has introduced a formalised procedure with appropriate supervision in juvenile institutions.46 Several studies have focused on children’s rights in the context of incarceration,47 while others have dealt with the experiences of young people in detention. Research by Eichelsheim and Van der Laan, for example, examines how juveniles deal with the deprivation of their liberty.48 However, in existing studies the link between children’s rights and the experiences of youngsters in juvenile institutions is not often made. Our research thus explores how children experience their time in detention, focusing on the practice(s) of one specific children’s right, namely the right to complain. 4.2 The Right to Complain: Through a Formal or Informal Route? Given that there is an international consensus on the definition of the right of juveniles to complain, in this chapter we employ the definition of the abovementioned un Havana Rules. These rules state that every juvenile should be able to submit a complaint without censorship to different institutions (for example, to the director, to the central administration, and so on). Furthermore, juveniles must be informed without delay of the decision made regarding their complaint. Importantly, every country should also take steps to establish an independent body for receiving and investigating complaints. Finally, these juveniles should receive assistance in filing their complaints.49 44

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Van Nijnattten C, Elbers E & van den Bogaard M ‘Complaining or not complaining? Reasoning about conflicts in juvenile inhabitants of residential care’ (2006) Journal of Social Welfare & Family Law 310. Liefaard T ‘Beklagrecht voor jongeren een gedeelde verantwoordelijkheid’ (2012) Tijdschrift voor Jeugd en Kinderrechten 240. Liefaard T ‘Vrijheidsbeneming van kinderen in het licht van internationale mensenrechten’ (2009) njcm-Bulletin 7. Goldson B & Kilkelly U ‘International human rights standards and child imprisonment: Potentialities and limitations’ (2013) International Journal of Children’s Rights 345–71; Liefaard T ‘De rechtspositie van jeugdigen in justitiële jeugdinrichtingen in het licht van internationale mensenrechten en actuele ontwikkelingen’ (2010) Delikt en Delinkwent 1115–40. Van der Laan A & Eichelsheim V ‘Juvenile adaptation to imprisonment: Feelings of safety, autonomy and well-being, and behaviour in prison’ (2013) European Journal of Criminology 424–43. The Havana Rules of 1990.

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Although every country should have a clear and comprehensible complaint procedure, this is evidently not the case. In Belgium, no legal framework specifically regulates the rights of youngsters in detention, nor is there any formal complaint procedure available.50 However, the right to complain as such is mentioned by the Decree on the Legal Status of Minors (Decreet Rechtspositie Minderjarigen). Indeed, juveniles in Belgium can submit complaints in several informal ways. For example, according to the ‘house rules’ of the special juvenile community institutions, juveniles can complain to the so-called JO-lijn, a telephone number and service that receives and investigates juvenile complaints, and/or to the children’s ombudsperson.51 According to the internal regulations of Everberg (until 2015 Everberg was a federal detention centre; it is now a Special Community Institution), juveniles can also complain to several other persons, for example, the director of the institution, their juvenile judge and their lawyer.52 As a result of this variety of informal complaint channels, the right to complain is fragmented and not always clear to juveniles. Moreover, and as already indicated, the Havana Rules advocate for the establishment of an independent body that is able to receive and investigate complaints from young people in institutions. Neither the Belgium federal state nor the Communities foresee the establishment of such an independent body yet. This is in sharp contrast with the Netherlands where, with the introduction of the Youth Custodial Institutions Act (Beginselenwet justitiële jeugdinrichtingen) in 2001, a clear legal formal framework to deal with complaints in juvenile institutions has been established. This Act introduces a supervisory committee with an accompanying complaints commission as well as a ‘Month Commissioner’ who visits the institutions at least once a month.53 At a European level, it appears that the Netherlands is one of the only countries that meets the un international standard in respect of the establishment of an independent body.54 4.3 Towards a Belgian Formal Complaint System? Although Belgium has no such body, this will probably change in the near future. At the end of 2013 the Flemish Parliament issued a ‘concept note’ 50 Kinderrechtencommissariaat Binnen(ste)buiten: Rechtswaarborgen voor Minderjarigen in Detentie Doorgelicht (2010) 84–6. 51 Jongerenwelzijn ‘Huisregels: gemeenschapsinstellingen voor bijzondere jeugdbijstand’ available at http://wvg.vlaanderen.be/jongerenwelzijn/assets/docs/hulp/gi-gfc/algemene -huisregels.pdf (accessed 9 June 2015). 52 Huishoudelijk reglement Everberg of 2007. 53 Beginselenwet justitiële jeugdinrichtingen of 2001. 54 For this comparison, we relied on the reports of the cpt and crc and compared Belgium, the Netherlands, France, Germany, Spain and the uk.

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a­ dvocating for the establishment of a supervisory committee and complaints office. Clearly, Flanders was inspired by the Dutch example, but nevertheless there are some differences. First, in the Netherlands juveniles can complain about decisions affecting them, but these decisions should be taken by or on behalf of the director of the youth facility. The Youth Custodial Institutions Act enumerates the decisions that can lead to complaints on behalf of juveniles; in the Flemish concept note, by contrast, such a list is not available. According to the concept note all practices that have an individual impact on juveniles should be open for complaint. Secondly, juveniles who complain in Dutch institutions must submit a written complaint within seven days; however, in the Flemish concept note no such time limit is foreseen, leaving the possibility open for juveniles to file a complaint even after their release. Thirdly, the decisions of the Dutch complaints committee are binding, whereas those of the complaints office in Flanders are not.55 After the concept note was submitted at the end of 2013, a hearing took place at the beginning of 2014 in the Flemish Parliament, but afterwards there were no further significant developments. However, on 4 February 2016, a draft decree was submitted to the Flemish Parliament. The draft decree concerns the establishment of an external monitoring and external complaints mechanism for facilities that are responsible for the custodial care of children and young people. The authors of the draft decree proposed the first of September 2016 as the effective date. The concept note dates back to 2013. Despite advice from the Council of State, as of August 2016 there has been little progress at the legislative level.56 4.4 Side-Effects? Though Belgium seems to be heading in the direction of a formal procedure as prescribed by the un Havana Rules, one wonders whether a formal procedure actually is the best way to deal with complaints by juveniles. First of all, a legal framework needs implementation in practice to be effective. For adult inmates in Belgium, for example, a formal right to complain exists but remains largely unapplied in practice.57 Secondly, the Dutch complaint procedure for juveniles has received its share of criticism. Liefaard and Bruning maintain that there 55 56 57

Conceptnota of 2013. Advies van de Raad van State of 2016. Daems T ‘Gekooid recht voor de gekooide mens. Stand van zaken basiswet gevangeniswezen en rechtspositie van gedetineerden’ (2011) Tijdschrift voor Strafrecht 337–45; Daems T & Vander Beken T ‘Enkel voor amateurs. Reflecties over en vanuit het extern toezicht op gevangenissen’ (2011) Orde van de Dag : Criminaliteit en Samenleving 73–78.

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is a tension between the right to complain and the pedagogical climate in institutions. On the one hand, clear rules are necessary, but, on the other, the staff need sufficient ‘space’ to be able to act in a pedagogical way. It is thus important, according to these authors, that the right to complain be used as a last resort.58 This tension was also noted by Jolande uit Beijerse during her tenure as Month Commissioner. She noted that institutional personnel found the existence of a complaint procedure quite convenient, in that they could cut short discussions with youngsters by saying that if they had any problems, they should lay a complaint. This runs counter to the idea that filing a complaint should be a measure of last resort.59 Another criticism of the Dutch model is that young people need to know how they can file complaints. Analysis of the practice shows that young people are not always well-informed of these rights.60 Moreover, the right to complain is said to create a paradox. While institutions have a primary responsibility to inform juveniles of their legal rights, it may not be in the institution’s interest to do so: too much attention to children’s rights might only ‘invite’ the child to file complaints ceaselessly.61 In other words, a formally elaborated complaint procedure can also be criticised. Despite these criticisms, we should be aware of the fact that the right to complain remains a legal safeguard for juveniles who are deprived of their liberty. But we are not yet in a position to describe or understand what it takes to make this an effective right. Consequently, more qualitative, in-depth research is needed. 5

The Need for another Type of Research

Since we want to understand how children’s rights and, more specifically, the right to complain, can play a role in how juveniles experience their time in detention, it would be useful to be able to consult existing scientific research. Unfortunately, at both an international and national level little research is 58 59

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Liefaard T & Bruning M ‘De rechtspositie van jeugdigen in justitiële jeugdinrichtingen’ in Weijers I & Imkamp F (eds) Jeugdstrafrecht in Internationaal Perspectief (2008) 229–56. Uit Beijerse J ‘De waarde van gesprekken met gedetineerde jongeren’ in Van der Leun JP, Muller ER & Van der Schee N et al. (eds) De Vogel Vrij, Liber amicorum prof.dr.mr. Martin Moerings (2011) 159–69. Liefaard T ‘De rechtspositie van jeugdigen in justitiële jeugdinrichtingen in het licht van internationale mensenrechten en actuele ontwikkelingen’ (2010) Delikt en Delinkwent 1115–40. Liefaard T Deprivation of Liberty of Children in Light of the International Human Rights Law and Standards (2008) 518–45.

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available on this topic. In Belgium, there is almost no empirical research about the practical implementation of the right to complain for juveniles deprived of their liberty. While a formal complaint procedure exists in the Netherlands, little empirical research is available.62 Since the Belgian report of the European project ‘Children’s rights behind bars’ of 2014, we have an overview of (all) existing complaints and monitoring mechanisms in Belgium. The study is based on literature, interviews and visits to places where minors are deprived of their liberty, but despite the fact that juveniles were interviewed, their perspectives and ‘voices’ were not explicitly integrated in the report.63 The report describes and points to possible formal, procedural as well as practical problems. The report of the Children’s Commissioner of England reveals that ‘[c]hildren and young people’s views, including complaints, can offer valuable insight into how services can be improved to meet their needs. Such evaluation and feedback are not threats but rather about service improvement.’64 So we still lack insight into how these complaint procedures work on a daily basis as well as, more importantly, how these practices are related to or embedded in youngsters’ experience of detention. As such, it remains unclear how the implementation of children’s rights plays a role in this environment and how these rights are protected. Future research should be able to provide more insight into how youngsters, in addition to the professionals running the institutions, experience and deal with children’s rights in detention. Giving children in detention a voice would be one way of gaining these insights. 5.1 Researching Children’s Pains, Resistance and Rights? We would like to close this chapter by presenting research that will be conducted in Belgium and the Netherlands and which we hope will guide and inspire the research agenda for 2040. However, the methodological challenges one has to deal with when conducting this kind of research are diverse. Our research focuses on how both youngsters and professionals experience detention and the right of the child to complain. In order to meet this goal we need to set up research that is, on the one hand, based on youngsters’ perspectives and lived experiences. In other words, we have to ‘give voice’ to youngsters in detention. On the other hand, professionals’ experience of and views 62 63 64

Liefaard T ‘Beklagrecht voor jongeren in detentie: een gedeelde verantwoordelijkheid’ (2012) Tijdschrift voor Jeugd en Kinderrechten 247. Grandfils S Children’s Rights Behind Bars. Grondrechten van Kinderen die van hun Vrijheid Beroofd Zijn: Verbetering van de Toezichtsmechanismen (2014) 95. Children’s Commissioner ‘Why are they going to listen to me?’ Young People’s Perspectives on the Complaints System in the Youth Justice System and Secure Estate (2012) 36.

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on detention, conflict and the right to complain should be investigated. We will approach our general research question via three more specific questions. First: How do detained youngsters submit (or not) to a regime of confinement, re-education and/or punishment? Secondly: How do children’s (human) rights play a role in the daily experience of youngsters in detention? And thirdly: How do children’s (human) rights play a role in the daily experience of professionals? Our research focus will be on the possible role of formal complaint procedures in the experience of young detainees and professionals. In order to address these three research questions, we need to set up a research approach that is both comparatively and qualitatively ­ethnographic. From a comparative perspective, investigating institutional practices in ­different countries with different legal complaint procedures can be very ­revealing. Furthermore, a qualitative-ethnographic approach guarantees a more ‘­bottom-up’ approach of everyday institutional practices, bringing the perspectives and voices of the concerned youngsters and professionals to the fore. We thus propose research that compares daily institutional practices and conflicts in a country with formal complaint procedures (the Netherlands) with those in a country in which more informal complaint procedures exist (Belgium). This research can illuminate the (in)efficacy of formal and/or informal complaints procedures. Conducting interviews with both juveniles and staff will be the main data collection technique. In preparation for the interviews, the researcher will undertake participant observation in the youth institutions. In the course of this, available records or files concerning discipline and punishment will be analysed. As Atkinson and Hammersley explain in their guidebook to ethnographic research, the advantage of combining participant observation with interviews is that the data from each approach can be used to illuminate the other.65 Indeed, the reason why interviews with young detainees must take place is precisely in order to solicit their narratives regarding institutional life, the conflicts they encounter and their experiences of complaints mechanisms.66 In addition, we will also interview staff in both countries in order to get a better understanding of both sides of the story. In the Netherlands, these interviews will be supplemented with interviews with professionals of the independent complaints or supervisory committee to better understand their views on and experiences of formal complaint procedures. 65 66

Atkinson P & Hammersley M Ethnography: Principles in Practice (2007) 102. James and Prout observe: ‘Ethnography is a particularly useful methodology for the study of childhood in that it allows children to have a voice in the production of sociological data’ (James A & Prout A Constructing and Reconstructing Childhood (1990) 8–9).

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5.2 Methodological Challenges When conducting this type of research, a researcher can be confronted with several methodological challenges. First, one must be aware that doing comparative research is a challenge in itself. Tubex notes that ‘a natural limitation of comparative research is being able to access information that is only available in foreign languages’. Furthermore, David Nelken points out that ‘a comparison is only valid if we are comparing “like with like”’.67 Secondly, when the research focuses on both juveniles and staff, it is important that the researcher adapt his or her approach to the respective subject’s ways of communicating. Christensen notes that ‘in order to hear the voices of children in the representation of their own lives it is important to employ research practices such as reflexivity and dialogue. These enable researchers to enter into children’s cultures of communication.’68 Thirdly, several challenges concerning the position of the researcher can also be anticipated. In a closed residential institution or prison there are several groups and power relationships at play. Detained children can perceive a researcher as someone who is on ‘the side’ of the staff. As early as 1967, Becker pointed to the importance of this question in a more general way.69 However, the issue is not straightforward: on the one hand, we want to acquire an insider position, but on the other hand we must be careful of not going (completely) ‘native’.70 In seeking to strike a balance we should at least be aware that we never enter the research field as neutral parties. As Bengtsson observes, ‘we all enter into the fields with our personalities, social characteristics, research interest and theoretical reconceptualizations and these always influence our data’.71 Finally, while every researcher can take these methodological challenges into account, it is also important to gain access to the participants, along with their trust and cooperation. As Atkinson and Hammersley warn, ‘Gaining access to informants can be quite complex, sometimes as difficult as negotiating access to a setting.’72 It may be necessary to negotiate with gatekeepers 67 68 69 70

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Nelken D Comparative Criminal Justice: Making Sense of Difference (2010) 34. Christensen P ‘Children’s participation in ethnographic research: issues of power and represenation’ (2004) Children & Society 165. Becker H ‘Whose side are we on?’ (1967) Social Problems 239–47. As Kleemans, Korf & Staring note, ‘“Going native” is a strongly implemented form of participation in the world of the research group, which would make it impossible for the researcher to do some critical report’ (Kleemans, Korf & Staring ‘Mensen van vlees en bloed. Kwalitatief onderzoek in de criminologie’ (2008) Tijdschrift voor Criminologie 331). Bengtsson T ‘What are data? Ethnographic experiences with young offenders’ (2013) Qualitative Research 8. Atkinson P & Hammersley M Ethnography: Principles in practice (2007) 104.

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in ­order to facilitate contact with the research field and/or the participants. A good strategy for gaining trust by participants is establishing ‘good rapport’: It is assumed that the establishment of rapport, which involves making the respondent feel relaxed, showing empathy and understanding, looking interested in what the respondent has to say etc. will encourage the respondent to “open up” and talk about their experiences.73 6 Conclusion In this chapter we stressed the need for another type of research concerning the right of children in detention to complain. In the last 25 years, thanks in part to the crc, attention has been given to the protection of children in detention and several children’s rights have been introduced. It has become clear that the right to complain can play an important role in safeguarding children’s rights in detention. However, we know little about this right in practice, about what and how doing children’s rights contribute to enhancing (or not) children’s legal protection and position. It is therefore important to include this kind of approach in the children’s rights research agenda for 2040. We established that a greater degree of bottom-up comparative qualitative research is necessary, and recommended gaining insight into daily life at juvenile detention facilities to better understand the experience of juveniles and professionals. In our view, the right to complain is the ideal entry-point for this investigation of the role children’s rights play by in daily practice in this setting. Thus, this research project can, on the one hand, contribute valuably to the debate on juveniles’ experience of the ‘pains of imprisonment’ and their resistance strategies, while, on the other hand, shedding light on the reasons for the pronounced gap between children’s rights in theory and practice. More specifically, it can increase our understanding of the ambiguous and uneasy relation of (formal) children’s rights in educational settings of confinement. While we are cognisant of the methodological challenges, but convinced that giving voice to the experiences of staff and detained juveniles in Belgian (Flemish) and Dutch institutions will be revealing from a youth-penological and children’s rights perspective. 73

Hubbard G, Backett-Milburn K & Kemmer D ‘Working with emotion: Issues for the researcher in fieldwork and teamwork’ (2001) International Journal of Social Research Methodology 130.

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Bibliography Books

Atkinson P & Hammersley M Ethnography: Principles in Practice (2007) London: Routledge. Christiaens J De Geboorte van de Jeugddelinquent (1999) Brussels: VUBPRESS. Cohen S & Taylor L Psychological Survival: The Experience of Long-Term Imprisonment (1972). Dumon Tak B Rotjongens: Het Leven in de Jeugdgevangenis (2013) Amsterdam: Athenaeum. Goffman E Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (1961) United States: Anchor Books. James A & Prout A Constructing and Reconstructing Childhood (1990) London: Falmer Press. Liefaard T Deprivation of Liberty of Children in Light of the International Human Rights Law and Standards (2008) Antwerp: Intersentia. Nelken D Comparative Criminal Justice: Making Sense of Difference (2010) Los Angeles: SAGE. Nurse A Locked Up, Locked Out: Young Men in the Juvenile Justice System (2010) Nashville: Vanderbilt University Press. Sykes G The Society of Captives: A Study of a Maximum Security Prison (1958) Princeton and Oxford: Princeton University Press. Vanlandschoot R Sluit ze op…: Jongeren in de Criminaliteit, 1400 tot Nu (2008) Leuven: Davidsfonds.

Chapters in Books

Christiaens J ‘Testing the limits: Redefining resistance in a Belgian boys’ prison, 1895– 1905’ in Cox P & Shore H (eds) Becoming Delinquent: British and European Youth (2002) 89–104 Aldershot: Ashgate. Chistiaens J & Weijers I ‘Een historisch perspectief op jeugdcriminaliteit’ in Weijers I & Eliaerts C (eds) Jeugdcriminologie. Achtergronden van jeugdcriminaliteit (2008) 23–36 Den Haag: Boom Juridische uitgevers. Goldson B ‘Children, young people and the contemporary penal landscape’ in Dockley A & Loader I (eds) The Penal Landscape: The Howard League Guide to Criminal Justice in England and Wales (2013) 189–218 London: Routledge. Goldson B & Muncie J ‘Children’s human rights and youth justice with integrity’ in Goldson B & Muncie J (eds) Youth Crime and Justice 2 ed (2015) Chap. 14 London: SAGE. Liebeling A ‘Prison suicide and prisoner coping’ in Tonry M & Petersilia J (eds) ­Prisons: Crime and Justice: A Review of Research (1999) 283–359 Chigaco: University of ­Chicago Press.

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Liefaard T ‘Effective remedies: inspection, supervision and complaints procedures’ in Liefaard T (ed) Deprivation of Liberty of Children in Light of International Human Rights Law and Standards 1 ed (2008) 328–37 Antwerp: Intersentia. Liefaard T & Bruning M ‘De rechtspositie van jeugdigen in justitiële jeugdinrichtingen’ in Weijers I & Imkamp F (eds) Jeugdstrafrecht in Internationaal Perspectief (2008) 229–56 Den Haag: Boom Juridische uitgevers. Muncie J & Goldson B ‘Editors’ introduction’ in Muncie J & Goldson B (eds) Comparative Youth Justice (2006) 1–5 London: SAGE. Muncie J ‘The United Nations, children’s rights and juvenile justice’ in Taylor W, Earle R & Hester R (eds) Youth Justice Handbook: Theory, Policy and Practice (2009) 1–14 Cullompton: Willan Publishing. Tubex H ‘Pitfalls of comparative (penological) research and how to overcome them’ in Beyens K et al. (eds) The Pains of Doing Criminological Research (2013) Brussels: Vubpress. Uit Beijerse J ‘De waarde van gesprekken met gedetineerde jongeren’ in Van der Leun JP, Muller ER & Van der Schee N et al. (eds) De Vogel Vrij, Liber amicorum prof.dr.mr. Martin Moerings (2011) 159–69 Den Haag: Boom Lemma uitgevers.

Journal Articles

Abrams L & Hyun A ‘Mapping a process of negotiated identity among incarcerated male juvenile offenders’ (2009) Youth Society 26–52. Becker H ‘Whose side are we on?’ (1967) Social Problems 239–47. Bengtsson T ‘Boredom and action experiences from youth confinement’ (2012) Journal of Contemporary Ethnography 526–33. Christensen P ‘Children’s participation in ethnographic research: Issues of power and representation’ (2004) Children & Society 165–76. Cox A ‘Doing the programme or doing me? The pains of youth imprisonment’ (2011) Punishment & Society 592–610. Daems T ‘Gekooid recht voor de gekooide mens. Stand van zaken basiswet gevangeniswezen en rechtspositie van gedetineerden’ (2011) Tijdschrift voor Strafrecht 337–45. Daems T & Vander Beken T ‘Enkel voor amateurs. Reflecties over en vanuit het extern toezicht op gevangenissen’ (2011) Orde van de Dag: Criminaliteit en Samenleving 73–78. Delens-Ravier I & Thibaut C ‘Du tribunal de la jeunesse au placement en IPPJ: La parole des jeunes’ (2003) Revue de Droit Pénal et Criminologie 22–69. Delisi M et al. ‘The cycle of violence behind bars: Traumatization and institutional misconduct among juvenile delinquents in confinement’ (2010) Youth Violence and Juvenile Justice 107–21. Dhami M, Ayton P & Loewenstein G ‘Adaptation to imprisonment: Indigenous or imported?’ (2007) Criminal Justice and Behavior 1085–100.

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Goldson B & Kilkelly U ‘International human rights standards and child imprisonment: Potentialities and limitations’ (2013) International Journal of Children’s Rights 345–71. Gover A, Mackenzie D & Armstrong G ‘Importation and deprivation explanations of juveniles’ adjustment to correctional facilities’ (2000) International Journal of Offender Therapy and Comparative Criminology 450–67. Hochsteler A & Delisi M ‘Importation, deprivation and varieties of serving time: An integrated-lifestyle-exposure model of prison offending’ (2005) Journal of Criminal Justice 257–66. Hubbard G, Backett-Milburn K & Kemmer D ‘Working with emotion: Issues for the researcher in fieldwork and teamwork’ (2001) International Journal of Social Research Methodology 119–37. Inderbitzin M ‘Growing up behind bars: An ethnographic study of adolescent inmates in a cottage for violent offenders’ (2005) Journal of Offender Rehabilitation 1–22. Inderbitzin M ‘Lessons from a juvenile training school: Survival and growth’ (2006) Journal of Adolescent Research 7–26. Inderbitzin M ‘Guardians of the state’s problem children: An ethnographic study of staff members in a juvenile correctional facility’ (2006) The Prison Journal 431–51. Jaspart A ‘Vivre le temps d’un enfermement. Premiers résultats d’une enquête de terrain réalisée dans trois centres fermés pour mineurs délinquants en Belgique’ (2010) Déviance et Société 217–27. Jaspart A ‘Chronique de criminologie: Enfermement des jeunes et temporalités. Entre cadence engourdissante et réveil angoissé’ (2011) Revue de droit pénal et de criminologie 358–81. Liefaard T ‘Vrijheidsbeneming van kinderen in het licht van internationale mensenrechten’ (2009) NJCM-Bulletin 358–72. Liefaard T ‘De rechtspositie van jeugdigen in justitiële jeugdinrichtingen in het licht van internationale mensenrechten en actuele ontwikkelingen’ (2010) Delikt en Delinkwent 1115–40. Liefaard T ‘Beklagrecht voor jongeren in detentie: Een gedeelde verantwoordelijkheid’ (2012) Tijdschrift voor Jeugd en Kinderrechten 239–50. Tasca M, Griffin L & Rodriguez N ‘The effect of importation and deprivation factors on violent misconduct: An examination of black and Latino youth in prison’ (2010) Youth Violence and Juvenile Justice 234–49. Van de Kerckhove M ‘Des mesures répressives aux mesures de sûreté et de protection. Réflexions sur le pouvoir mystificateur du langage’ (1977) Revue de droit pénal 245–79. Van der Laan A & Eichelsheim V ‘Juvenile adaptation to imprisonment: Feelings of safety, autonomy and well-being, and behaviour in prison’ (2013) European Journal of Criminology 424–43.

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Van Nijnatten C, Elbers E & Van Den Bogaard M ‘Complaining or not complaining? Reasoning about conflicts in juvenile inhabitants of residential care’ (2006) Journal of Social Welfare & Family Law 309–22. Wilson D ‘“Keeping quiet” or “going nuts”: Some emerging strategies used by young black people in custody at a time of childhood being re-constructed’ (2003) The Howard Journal 411–25. Wilson D ‘“Keeping quiet” or “going nuts”: Strategies used by young, black men in custody’ (2004) The Howard Journal 317–30.

Newspaper Articles

Vanhecke N ‘Jongeren in cel door plaatstekort in instellingen’ De Standaard 3 October 2014, available at http://www.standaard.be/cnt/dmf20141003_01301043 (accessed 8 June 2015).

Reports

Children’s Commissioner ‘Why are they going to listen to me?’ Young People’s Perspectives on the Complaints System in the Youth Justice System and Secure Estate (2012) England: User Voice. Eichelsheim V & Van Der Laan A Jongeren en Vrijheidsbeneming: Een Studie naar de Wijze Waarop Jongeren in Justitiële Jeugdinrichtingen Omgaan met Vrijheidsbeneming (2011) Den Haag: WODC. Grandfils S Children’s Rights Behind Bars. Grondrechten van Kinderen die van hun Vrijheid Beroofd Zijn: Verbetering van de Toezichtsmechanismen (2014) Brussel: Défense des Enfants Belgique. Kinderrechtencommissariaat Binnen(ste)buiten: Rechtswaarborgen voor Minderjarigen in Detentie Doorgelicht (2010) Kampenhout: Kinderrechtencommissariaat. Pinheiro PS The United Nations Secretary-General’s Study on Violence against Children (2006) Geneva: United Nations.

Theses

Jaspart A L’enfermement des mineurs délinquants au centre fédéral « De Grubbe » et dans les deux institutions publiques à régime fermé pour garçons en Communauté française (Fraipont et Braine-Le-Château) (Doctoral thesis, Université Libre de Bruxelles, 2010).

Legislation

Advies van de Raad van State over het voorstel van decreet houdende het externe toezicht en de externe klachtenregeling bij voorzieningen voor vrijheidsbenemende opvang van kinderen en jongeren, Parl.St. Vl. Parl. 2015–16, nr. 633/2.

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Conceptnota voor nieuwe regelgeving over extern toezicht en externe klachtenbehandeling inzake hulp- en dienstverlening aan kinderen en jongeren en hun gezinnen, Parl.St. Vl. Parl. 2013–14, nr. 2312/1. Convention on the Rights of the Child, 1989 United Nations General Assembly Resolution 44/25 (1989). Decr. Vl. 7 mei 2004 betreffende de rechtspositie van de minderjarige in de integrale jeugdhulp, BS 4 oktober 2004, 70066. European Convention of Human Rights (1950). European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), CPT Standards (2015). European Rules for Juvenile offenders subject to sanctions or measures (2008). General Comment No. 10 (2007) on children’s rights in juvenile justice. M.B. 6 maart 2007 tot goedkeuring van het huishoudelijk reglement van het centrum voor voorlopige plaatsing van minderjarigen die een als misdrijf omschreven feit hebben gepleegd « De Grubbe » in Everberg, BS 27 maart 2007, 16768. Resolutie 45/113 van de Algemene Vergadering van de Verenigde Naties (14 December 1990), UN Doc. A/RES/45/113 (1990). United Nations Standard Minimum Rules for the Treatment of Prisoners, resolution 217 A (2015). Voorstel van decreet houdende het externe toezicht en de externe klachtenregeling bij voorzieningen voor vrijheidsbenemende opvang van kinderen en jongeren, Parl.St. Vl. Parl. 2015–16, nr. 633/1. Wet van 2 november 2000 tot vaststelling van een Beginselenwet justitiële jeugdinrichtingen en daarmee verband houdende wijzigingen van het Wetboek van Strafrecht, het Wetboek van Strafvordering en de Wet op de jeugdhulpverlening alsmede enige andere wetten, Stb. 1 september 2001. Wet 15 mei 1912 betreffende de kinderbescherming, BS 27-28-29 mei 1912.

Internet Sources

Global study on children deprived of liberty, available at https://www.childrendepri vedofliberty.info (accessed 2 November 2015). Jongerenwelzijn ‘Huisregels: gemeenschapsinstellingen voor bijzondere jeugdbijstand’, available at http://wvg.vlaanderen.be/jongerenwelzijn/assets/docs/hulp/ gi-gfc/algemene-huisregels.pdf (accessed 9 June 2015).

chapter 30

What the Children Thought: Some Methodological and Ethical Considerations in Comparative Child Research Elisabeth Backe-Hansen Abstract The chapter discusses certain methodological and ethical issues connected with crosscountry, comparative surveys involving children, based on comments from the Norwegian participants in the study, Children’s Worlds. An important point of departure is the issue of rights-based child research as defined by Beazley et al. (2009) and understood through a combination of four articles in the crc. These highlight participation rights (art. 12.1), the right to freedom of expression (art. 13.1), the right to be protected by persons of high standards (art. 3.3), and the right to be protected against exploitation (art. 36). On the basis of comments from the Norwegian participants, it is argued that five issues are important to address: design; whether similar words and phrases cover the same phenomena; the significance of context; what constitute sensitive areas; and dealing with overtly negative responses. At a general level, comparative, cross-national studies generate knowledge which may be used in policy-making nationally and internationally. At the same time the question remains as to whether some of the questions take context sufficiently into account or are too sensitive for certain participants in certain countries, and should, thus, be discussed further in relation to article 36.

1 Introduction It has become increasingly popular to investigate children’s own views of various aspects of their well-being through the use of surveys, both at the national level1 and comparatively across countries.2 This development reflects a ­genuine 1 See, for example, nova Nasjonale resultater 2013 (2014) (Norway); Lloyd K ‘Shared education: Views of children and young people’ (2013) 82 Research Update (Northern Ireland); and the Children’s Society The Good Childhood Report (2014) (England). 2 See Bradshaw J & Richardson D ‘An index of child well-being in Europe’ (2009) 2 Child Indicators Research 319–51; Dinisman T & Rees G Findings from the first wave of data collection (2014); Livingstone S, Haddon L, Görzig A & Olafsson K Risks and safety on the internet: The

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_031

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interest in discovering what large numbers of children think and experience, motivated not the least by the un Convention on the Rights of the Child (crc).3 The Convention provided a new impetus for child research because States Parties were faced with the necessity to report regularly on progress towards achieving the human rights of children in their nations.4 In addition, child well-being is an important concern for policy-makers. How children fare through critical points of development will affect their quality of life, their productivity, welfare dependency and the transmission of their later life outcomes to their own children.5 Furthermore, the crc can be seen as warranting a globalised perception of childhood,6 in itself making comparative studies of large numbers of children and young people important. The flipside of this is a concern that the globalised conception mirrors a Western conception of ‘the good childhood’. All these developments contribute to making comparative, cross-national survey studies of children and young people attractive. However, the survey approach necessitates the use of similar questions and similar response alternatives across countries in order to enable the desired comparisons. This in itself raises several methodological and ethical issues, particularly as both the use of and importance attributed to cross-country surveys with children increase. The Organization for European Economic Development (oecd)’s repeated tests of school achievement7 is one well-known example where the question of substantive comparability has lately been raised.8 The research literature often discusses this as the problem of equivalence,9 or the question of the incommensurability of the concepts under investigation in cross-country

3 4 5 6 7 8 9

perspective of European children. Full findings and policy implications from the eu Kids online survey of 9–16 year olds and their parents in 25 countries (2012). Fattore T, Mason J & Watson E ‘Locating the child centrally as a subject in research: Towards a child interpretation of well-being’ (2012) 5 Child Indicators Research 423–35. Beazley H, Bessell S, Ennew J & Waterson R ‘The right to be properly researched: Research with children in a messy, real world’ (2009) 7 Children’s Geographies 365–78. Richardson D & Ali N ‘An evaluation of international surveys of children’ (2014). Wells K Childhood in a Global Perspective (2015). Like PISA (reading, maths, science, and problem solving), timms (maths and science) and pirls (reading). Richardson D & Ali N ‘An evaluation of international surveys of children’ (2014). Bynner J & Chisholm L ‘Comparative youth transition research: Methods, meanings and research relations’ (1998) 14 European Sociological Review 131–50; Bynner J ‘Role statuses and transitions in adolescence and young adulthood: Reflections and implications’ (2012) 3 Longitudinal and Life Course Studies 243–53; Jowell R ‘How comparative is comparative research?’ (1998) 42 The American Behavioural Scientist 168–77; Straus MA ‘Phenomenal identity and conceptual equivalence of measurement in cross-national comparative research’ (1969) 31 Journal of Marriage and the Family 233–9.

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comparisons.10 The existence of such issues is to be expected in cross-country comparisons of survey data or administrative datasets, and are, more or less successfully, dealt with in different ways.11 1.1 Rights-Based Research with Children and Young People What position could what might be called rights-based research have in this? Beazley et al. argue that ‘rights-based research with children acknowledges their agency, not as the outcome of academic theory but rather as recognition that they are the subject of rights’.12 Interestingly enough, the interest in including children directly in research did not arise as a direct consequence of a rights-based approach. An epistemological shift towards acknowledging children and young people as competent actors in research was influenced by the thinking leading up to and resulting from work with the crc, but resulted as much from developments within the human and social sciences. Thus, it might be argued that two strands of thinking have converged and become more or less intertwined during the last couple of decades. First, literature recognising children and young people as competent participants in research has proliferated, but using arguments that do not need a rights-based perspective to be valid.13 From this perspective, children’s participatory rights in particular become an additional justification. Secondly, the crc has inspired research more directly related to children’s rights and children’s participation.14 The crc does not contain direct provision for research with children and young people. The argument for rights-based research, or ‘the right to be properly researched’, in the words of Beazley et al., can be derived instead from a combination of provisions in four articles in the Convention, originally discussed by Ennew and Plateau.15 Not surprisingly, article 12, often called ‘the 10

11 12 13 14 15

Collier D & Mahon JE Jr ‘Conceptual “stretching” revisited: Adapting categories in comparative analysis’ (1993) 87 American Political Science Review 845–55; Sztompa P ‘Conceptual frameworks in comparative inquiry: Divergent or convergent?’ in Albrow M & King E (eds) Globalization, Knowledge and Society (1990) 47–60. Dinisman T & Rees G Findings from the first wave of data collection (2014); Richardson D & Ali N ‘An evaluation of international surveys of children’ (2014). Beazley H, Bessell S, Ennew J & Waterson R ‘The right to be properly researched: Research with children in a messy, real world’ (2009) 7 Children’s Geographies 371. Morrow W & Richards M ‘The ethics of social research with children: An overview’ (1996) 10 Children and Society 90–105. For instance, Percy-Smith B & N Thomas (eds) A Handbook of Children and Young People’s Participation (2010). Ennew J & Plateau DP How to Research the Physical and Emotional Punishment of Children (2004) Part ii, 29.

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democracy article’, is prominent among them. Article 12.1 states that children’s opinions should be taken into consideration in decisions taken on their behalf. A consequence of this is that children and young people’s perspectives and opinions must be integral to research. Although acknowledged for decades, no general agreement exists as to how to fulfil this obligation in the best ethical and methodological ways. Different solutions have been found, from consulting children and young people through focus groups or piloting before going through with a piece of research, to involving them throughout the research process, including in the analyses and interpretation of results.16 Secondly, article 13.1 states that the child shall have the right to freedom of expression, which shall include the right to seek, receive, and impart information of all kinds. A consequence of this is that methods need to be found, and used, to help children express their perspectives and opinions freely in research. This reflects an ongoing interest in so-called ‘child-friendly’ methods, an interest which takes into consideration the kind of methodologies that are suitable and engaging according to participants’ ages and developmental levels. Thirdly, article 3.3 states that 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, the numbers and suitability of their staff, and competent supervision. Thus, research must conform to the highest possible scientific standards, and researchers must be recruited and supervised carefully. Finally, article 36 protects children against all forms of exploitation prejudicial to any aspects of the child’s welfare. Accordingly, children must not be harmed or exploited by taking part in research. This is analogous to the ethical standard of promoting beneficence and avoiding risk and/or harm that will always need to be specified in relation to the kind of research being done. The study discussed in this chapter, Children’s Worlds,17 relates directly to article 12.1 in that children themselves answer questions about their daily lives, their family and their well-being. Because much work was done initially to ensure child-friendly methodology, the study relates to article 13.1 as well. Each participating country is responsible for the competence of their researchers, the quality of the national work, and ensuring the necessary ethical approval. At the same time, the use of a common methodology, supervised by a core group of researchers, goes a long way towards ensuring that the issues ­addressed in article 3.3 are properly taken care of. My discussion relates to 16

Casas F, Gonzalez M, Navarro D & Aligué M ‘Children as advisers of their researchers: ­ ssuming a different status for children’ (2013) 6 Child Indicators Research 193–212. A 17 See http://isciweb.org.

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a­ rticle 36, that is, to the extent to which it is possible to conduct comparative child research using the survey format while at the same time avoiding undue harm to the participants. 1.2 Methodology and Ethics An important concern arises when methodological issues can also become ethical questions. First, power differences between adults and children are one of the biggest ethical challenges for researchers seeking to include children in research, and pertain to the entire research process. In receiving instructions from an adult, children may easily feel that they must perform in a particular way, be on their best behavior, and produce information that the adult researcher wants to hear. Factors such as social status and background, ethnic or otherwise, can further influence these power dynamics. Secondly, from a rights-based as well as an ethical perspective, researchers have a responsibility to ensure that individual children participating in research do not come to harm as well as to attend to the long-term and/or greater good for children as social groups.18 In comparative, cross-country research on children’s wellbeing, an important goal obviously will be to improve conditions and policies. However, we need to address the question of whether inherent differences between conditions in the countries included may contribute to individual discomfort for participants or to the misrepresentation of some groups. The discussion that follows is based on a Norwegian study under the auspices of Children’s Worlds, an ongoing, school-based study involving more than 45,000 8-, 10- and 12-year-olds from 15 countries.19 The Norwegian study included an open-ended question at the end of the questionnaire, inviting comments from the children. Written input from 325 children who participated in the study, and oral input from 26 children who participated in a pre-test, form the basis for the ensuing analyses, supplementing two questions with fixed response alternatives about the length of the survey and the value of the questions. In the sections below I give a brief description of the Children’s Worlds project as background to the discussion, after which I present five different issues, ranging from technicalities like the design of the questionnaire to which questions some children seem to find too sensitive. Finally, these issues are ­discussed in relation to common objectives of comparative child research. I use written comments from Norwegian children participating in one such cross-national survey, Children’s Worlds,20 as the point of departure. 18

Graham A, Powell M, Taylor N, Anderson D & Fitzgerald R Ethical Research Involving Children (2013). 19 Available at http://isciweb.org/. 20 See http://www.isciweb.org for a description of this study.

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Children’s Worlds is an international, intercultural and multi-linguistic survey, studying children in mid-childhood in as many countries as possible around the globe.21 The study aims to collect solid and representative data from children on their lives and daily activities, their time-use and, in particular, their own perceptions and evaluations of their well-being. The purpose is to improve children’s well-being by creating awareness among children, their parents and communities, as well as among opinion leaders, decision-makers, professionals and the public. The study presented here is part of the second wave of data collection; a third wave is planned for 2017/2018.22 The thinking behind the project draws together several related strands of interest. First, we would like to focus on childhood as an important life stage in its own right rather than just a preparation for adulthood. Secondly, we focus on children as social actors rather than primarily as members of families or households. Thirdly, we want to gather information directly from children about their views and experiences. Fourthly, we are interested in exploring the fullest possible range of topics, ensuring that we include topics the children themselves find important. This led to a focus on positive and evaluative indicators rather than on indicators based on problems and behaviours. Finally, we wish to explore the concept of children’s subjective well-being, following up on the growth in interest internationally over the last few decades in the topic of adults’ well-being.23 The study is thus highly relevant to the obligation put on State Parties by the crc to report regularly on children’s human rights. The participants answer some questions which pertain directly to their rights, while the other questions are indirectly relevant as they concern children’s well-being in various life domains. As Jowell points out, such studies, as long as they are rigorously conducted, help to reveal not only intriguing differences between countries and cultures, but also aspects of one’s own country and culture that would be difficult to detect from domestic data alone.24 The following countries participated in round two of the data collection: Algeria, Colombia, England, Estonia, Ethiopia, Germany, Israel, Nepal, Norway, Romania, Spain, South Africa, South Korea, Turkey, and Uganda. The 21 22 23 24

Dinisman T & Rees G Findings from the first wave of data collection (2014). Available at http://stage1.darotools.com/haruv-int.EN.V1/?CategoryID=157. Rees G & Main G Children’s Views of their Lives and Well-being in 15 Countries: An Initial Report on the Children’s Worlds Survey, 2013–14 (2015). Jowell R ‘How comparative is comparative research?’ (1998) 42 The American Behavioural Scientist 168–77.

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­participating children thus live in countries in Africa (four), Asia (four, counting Israel and Turkey), Eastern and Western Europe (six) and South America (one), with Buddhist and Christian (Catholic as well as Protestant), Jewish and Muslim denominations and huge variety in economies, cultures and, not least, languages. Thus, the very ambition to conduct a world-wide survey challenges assumptions of conceptual equivalence, highlighting the tension between what may be called the search for universals and the elucidation of uniqueness.25 Using identical procedures in different societies for eliciting and quantifying data will not necessarily result in measurement of the same variable.26 As the participating children are 8, 10 and 12 years old, they attend school years 3, 5 and 7 in Norway. They are all in primary school, which encompasses the first seven years of our ten-year mandatory school. The project aims to recruit 1,000 participants at each age level in each country, that is, 3,000 per country. Altogether 2,864 children participated in Norway (the adjusted sample), of whom 53 per cent were girls and 7 per cent were born in other countries. It is of particular interest to discuss the issues highlighted above in relation to the Children’s Worlds study, as the researchers share a commitment to children’s participation in research in ways that are meaningful to them.27 The preparations for the project have been thorough, with several stages of preparation, including a 14-country pilot.28 The lead researchers have been particularly concerned with making the questionnaires age-appropriate and relevant for the participants, consulting children in the process. In addition, the possibility of some necessary national adaptations has been retained, making the questionnaires more child-friendly,29 and, more generally, local consultation has been conducted as recommended by Graham et al. in their study of ethics in cross-national child research involving both majority and minority countries.30 Indeed, most of the written comments from the Norwegian children were very positive towards the questions and the design of the survey as well as the p ­ roject. 25 26 27 28 29

30

Bynner J ‘Role statuses and transitions in adolescence and young adulthood: Reflections and implications’ (2012) 3 Longitudinal and Life Course Studies 243–53. Straus MA ‘Phenomenal identity and conceptual equivalence of measurement in crossnational comparative research’ (1969) 31 Journal of Marriage and the Family 233–39. Cf. arts. 12.1 and 13.1 crc. Rees G & Main G Children’s Views of their Lives and Well-being in 15 Countries: An Initial Report on the Children’s Worlds Survey, 2013–14 (2015). Casas F, Gonzalez M, Navarro D & Aligué M ‘Children as advisers of their researchers: Assuming a different status for children’ (2013) 6 Child Indicators Research 193–212; Dinisman T & Rees G Findings from the first wave of data collection (2014). Graham A, Powell M, Taylor N, Anderson D & Fitzgerald R Ethical Research Involving Children (2013).

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Both 10- and 12-year-olds made comments like the ones shown here, sometimes with a touching confidence in what such surveys can actually accomplish: • ‘I think it was interesting to answer the questions. I think it was fun.’ • ‘I think it was fun and useful.’ • ‘I think it was important because others want to know how you are doing at home.’ • ‘The questionnaire is a good thing because then adults get to know how children are doing.’ • ‘Every child in the world should take this test. Everyone should have a good everyday life at school and be doing great.’ • ‘It is important with such questionnaires, so that if something is wrong you can do something about it.’ • ‘It is ok that people have this survey in case someone is hurting.’ Not more than 12 of the 8-year-olds commented altogether, so the comments I present in the remainder of the chapter come from children in the two oldest age groups. As the examples above show, the positive comments fell primarily into two categories. The first concerned the salience of the topic, that is, whether the questionnaire was interesting, even fun, and perceived as relevant. The second concerned the value the participants perceived in the research, that is, whether the results would provide important information to grown-ups about children’s well-being or problems. Reeves et al. found the same broad categories in their focus group interviews with children aged 7–15 about various aspects of participation in survey studies.31 Both relate to the issue of beneficence, or article 36 in the crc as discussed above. 3

Five Methodological and Ethical Issues

We included two questions about the questionnaire as such, which the children could answer by ticking off the following response alternatives: ‘I do not agree’, ‘I agree’, and ‘I don’t know’. The first statement was The questionnaire is too long. The children’s responses are shown in Tables 30.1 and 30.2 below. The table shows moderate age differences. However, the youngest participants come across as the most uncertain about the length of the ­questionnaire. 31

Reeves A, Bryson C, Ormston R & White C Children’s Perspectives on Participating in Survey Research (2007).

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Table 30.1 Whether the questionnaire was too long, by age (per cent)

8-year-olds (n = 920) 10-year-olds (n = 938) 12-year-olds (n = 944)

‘I do not agree’

‘I agree’

‘I don’t know’

44.6 49.3 55.1

25.7 24.6 22.1

29.8 26.1 22.7

Table 30.2 The importance of questions, by age (per cent)

8-year-olds (n = 919) 10-year-olds (n = 925) 12-year-olds (n = 948)

‘I agree’

‘I do not agree’

‘I don’t know’

70.8 75.8 76.6

5.2 6.4 7.7

23.9 17.8 16.6

In all three age groups, 10 per cent more boys than girls agreed that the questionnaire was too long, while around 10 per cent more children born in countries other than Norway answered that they did not know. Consequently, a sizeable minority of the participants chose to disagree openly or not take a stance with regard to the length of the questionnaire. It is not surprising that a fair amount of the written input from the children concerned this issue. The second statement was In the questionnaire I am asked about things that I  think are important, with the same response alternatives. The results are shown in the table below. The table shows the age differences were smaller at this point and that a large majority of the participants agreed our questions were important. In other words, length was more of an issue than the importance of the questions. Again, more boys than girls disagreed among the 10- and 12-year-olds, but now not among the 8-year-olds. Compared to children born in Norway, those born in other countries chose the ‘don’t agree’ and ‘don’t know’ response alternatives. These responses from the children are encouraging in the sense that a satisfactorily large majority seem positive about having participated in Children’s Worlds. Still, a not unsubstantial minority were undecided or critical, and there were also notable gender and ethnic differences in this regard. This underlines the value of the analyses I present below, since the children’s own comments are a valuable way of ascertaining their reactions in more depth. As the intention in this chapter is to discuss methodological and ethical considerations arising from some of these comments, which again relate in particular to

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article 36 of the crc, I have not analysed possible correlations between types of comments and the children’s specific characteristics. 3.1 Questionnaire Design The first issue concerns design. How long should a questionnaire be in order to elicit the desired information without tiring the participants unduly? How should the researchers pose the questions to make them meaningful for as many participants as possible while at the same time ensuring robust data? And how should they formulate the response alternatives? These questions are an integral part of questionnaire design and one of the issues most frequently addressed in discussions of children’s participation in surveys.32 As we will see, the children addressed all three in their comments. 3.1.1 Length • • • •

‘The questionnaire could have been maybe 2 pages shorter.’ ‘Way too long!’ ‘It was a good length with good questions.’ ‘It should have been longer!’

These and other comments illustrate that children react differently to questionnaires as they do to other tasks. Children in the same class will differ, and it is impossible to expect the same responses from everybody. The question is how to address this issue in a school-based questionnaire. Limiting the number of questions has been an important concern for Children’s Worlds, and the final version of the questionnaire contained 26 questions for the 8-year-olds, 34 for the 10-year-olds and 37 for the 12-year-olds. This makes it quite a brief questionnaire compared to, for example, Kids’ Life and Times, which 11-12-year-olds in Northern Ireland complete annually.33 In 2013 this questionnaire contained 80 questions.34 The children participating in Children’s Worlds took between 20 minutes and one school hour (45 minutes) to complete their questionnaires. In general, the younger children 32

Andersen D & Kjærulff AM Vad kan børn svare på? Om børn som respondenter i kvantitative spørgeskemaundersøgelser (2003:07); Backe-Hansen E ‘Barns deltakelse i spørreskjemaundersøkelser sett i forhold til generelle, forskningsetiske krav’ i Andersen D & Ottosen MH (eds) Børn som respondenter. Om børns medvirken i survey (2002:17) 47–66. 33 Lloyd K ‘Shared education: Views of children and young people’ (2013) 82 Research Update. 34 See http://www.ark.ac.uk/klt/quests/.

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needed more time in spite of the shorter version of the questionnaire, as did some of the children with non-Norwegian backgrounds, independently of age. The different amount of time used indicates that some children will always need more time than other children do, a matter that needs to be considered in the planning process. A balance has to be struck between investigating all questions of interest to a study and risking lower response rates, boredom or irritation on the part of the participants towards the end of the questionnaire. 3.1.2

Use of Scales

• ‘You asked about the same things!’ • ‘It was too many of the same questions. Many questions were similar to other questions.’ • ‘Why are the same questions asked many times? For instance: Are you safe, are you safe at home, are you safe at school, are you safe outside?’ Like many questionnaires of this type, Children’s Worlds’ one contains scales measuring latent concepts that relate to various aspects of well-being. This has sound methodological justification, in that scales usually produce more robust results than single items. In addition, using previously validated scales, which we do in Children’s Worlds, is a further way of guaranteeing the quality of the research.35 However, using such scales means using fairly similar questions, and hence the observations mentioned above by the children are quite accurate. Here, considerations of the quality of the results might have influenced some of the children’s reactions to the questions, making them feel bored. If too many children become too bored, this may influence the quality of the data adversely, as they will perhaps not bother to consider their answers or even to answer some of the questions. On the other hand, it is not possible to avoid boredom completely among all participants, and many children are used to being bored at school anyway. Since today’s children in Norwegian schools are used to filling in booklets with written questions, many see a questionnaire as a kind of test or quiz, that is, as part of an ordinary school day. 3.1.3

Response Alternatives

• ‘I think it is difficult to answer with a number, better with agree, agree somewhat, etc.’ 35

Cf. art. 3.3 crc, as discussed above.

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• ‘I don’t think one of the questions from 0 to 10 should be “my body”, so I didn’t answer that one.’ • ‘Some of the response alternatives did not quite match my answer.’ • ‘The questions were strange, because you can misinterpret my answers. Sometimes none of the options were right for me and it was not possible to choose “don’t know”.’ Which are the best scoring values in a comparative perspective? Like many other studies, Children’s Worlds uses emoticons to denote a five-point scale for the 8-year-olds. This seemed to work well, and the youngest children who participated in the development of the questionnaire in Spain suggested this solution.36 Many of the questions answered by the older children use five-point scales as well, this time with response alternatives provided verbally in statements like ‘agree totally’, ‘agree somewhat’, and so on. In addition, children are asked to rate their own satisfaction with different life areas on a scale from zero to ten, which, according to comments from the children, created further problems. To what extent can we expect that children in this age group can use such a scale in a meaningful manner? In Spain, for instance, children from an early age receive school grades using this scale,37 but in Norway they do not get grades in the form of numbers until year 8, which may compound the problem. Although not many children commented directly on this, it might be that problems connected with understanding the system of the scales made the questions more difficult to understand as well. A number of comments pointed out that some questions were too difficult. In addition, response alternatives that children find difficult to grasp may lead to set response patterns, which in turn generate less rich and representative data. This is also a common issue in surveys with adults. Neither of the issues raised here need create ethical problems, however, unless the questionnaire is so difficult for so many children to complete that a majority of them end up feeling stupid. Obviously, this was not the case with Children’s Worlds. It is, rather, a question of how the format influences the results and whether this leads again to serious misrepresentation of children’s views, a situation which can occur, for instance, if too many children do not use the scales properly. In that case, an ethical problem arises if a misrepresentation creates an unnecessarily negative picture of some of the participants, 36 37

Casas F, Gonzalez M, Navarro D & Aligué M ‘Children as advisers of their researchers: ­ ssuming a different status for children’ (2013) 6 Child Indicators Research 193–212. A Casas F, Gonzalez M, Navarro D & Aligué M ‘Children as advisers of their researchers: ­Assuming a different status for children’ (2013) 6 Child Indicators Research 193–212.

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for example children with non-Norwegian-speaking backgrounds or children with learning difficulties. We cannot know to what extent this was the case in our study, but the differences in the children’s responses underline the need for thorough preparations beforehand. Furthermore, the need arises for grownups to be available to offer explanations and assistance to a larger extent than was possible in the Norwegian study. 3.2

Similar Words and Phrases but Different Phenomena?

• ‘There were some questions that were kind of odd, that I did not understand.’ • ‘The questions were poorly explained.’ • ‘The questions were strange. I needed help from an adult.’ • ‘The questions were a little unnecessary and hard to understand.’ • ‘Some I like a lot and are best friends, others I hate.’ • ‘Some of the teachers are rude.’ Design always depends on content. As Straus pointed out almost half a century ago, identical procedures do not necessarily produce conceptual equivalence. This issue becomes even more pertinent in cross-country comparative research, and has to do with both the use of identical words and the level of categorisation. It is compounded when the number of languages involved are both numerous and substantially different in nature, as in Children’s Worlds. Can we be certain, for instance, that the concept ‘right’ (as in ‘a human right’) is understood in the same way by all children? Although almost all countries in the world have now ratified the crc, there are still large differences between countries pertaining to, for instance, individual versus collective or familial rights. Another example would be probable variations in what children in different countries associate with ‘feeling safe’ at home, at school, or where they live, and whether the same age group experiences this in similar or different ways depending on country. Yet another example is the (English) term ‘in general’, which is directly translatable into Norwegian. However, several children in the pre-test, even the oldest ones, did not understand it as it is a term used in Norwegian primarily by grown-ups. Thus, children of Norwegian and foreign parentage were alike in finding the term difficult, although the latter group found more of the abstract concepts troublesome. One would expect the youngest children to have greater trouble with abstract or general questions, but as mentioned earlier, we do not have the same range of comments from them. Hence, the issue was finding a concept that children – and not only adults – understand, yet

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doing so without losing the intention of those questions in the questionnaire that included the term. In addition to using general or abstract words and concepts, cross-country comparisons using surveys can involve using fairly general or abstract phrases in the questions as well. This may pose an even bigger challenge to valid crosscountry comparisons than single words do, and again illustrates the difficult balance researchers need to strike between the general and the particular. One of the statements used in Children’s Worlds is My teachers listen to me and take what I say into account. What is the correct response alternative to select if the children consider that some – but not all – of their teachers listen to them and take into account what they say? Nor is it uncommon for children to consider that teachers listen to only some – but, again, not all – of the things they say and take them into account. In other words, the children might have reacted to the wording of these questions because they are not used to judging their teachers, friends or siblings lumped together. Then, they may react by finding the questions strange, unnecessary or hard to understand, depending on the child’s attitude. Another theme concerns bullying. We ask the children whether they have been hit or excluded by other children during the last month. The response alternatives are ‘never’, ‘once’, ‘2–3 times’, ‘more than 3 times’ and ‘don’t know’. However, we do not define either of these items in the questionnaire. Thus, we cannot know how much the children’s way of calling specific events ‘hitting’ or ‘excluding’ varies, or to what extent they actually understand similar events differently. Does it matter, for instance, whether the child who hits you is younger than you, the same age or older? Must the child feel that an act of hitting him or her is intentional, or do they report any act irrespective of this consideration? Must it hurt for it to be called hitting, and are some parts of the body more sensitive, such that contact with one part counts as hitting whereas contact with another does not? Is an experience of being excluded related to who the excluding persons are or how many there are? 3.3

The Significance of Context

• ‘It was difficult to answer because Mum and Dad live at two different places.’ • ‘I think it should have been possible to write a comment under each question. For example with my mother, I have no neighbours because she lives on a farm, but I like Dad’s neighbours.’ As Bynner remarks, even if we use ostensibly the same measures in a comparative study translated into the relevant languages, we still have to confront

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­cultural differences.38 These inhere not only in each country’s institutions and the assumptions on which they are based, but in the meaning of the words used to describe the constructs to which the measures refer.39 Children’s Worlds includes a series of questions about what children have or do not have at home, and how satisfied they are with their families. The questionnaire design presupposes that the children have one home and live mainly with one family. However, among the children participating in Norway, 18 per cent of the 12-year-olds and 17 per cent of the 10-year-olds answered that they divided their time between two homes. We did not ask the 8-year-olds. This response alternative was expressly included in Norway because we know that sharing time between two families would be the case for a proportion of the participants. This has become a much more common option after divorce during the last ten years or so. The question is how to interpret the responses from children with two homes. For instance, those with two homes were significantly less satisfied with the house or flat where they lived, the members of their family, others in their family, and their family life in general. However, we cannot know to what extent children with two homes have chosen one family as their reference point, know to what extent they have chosen the less positive response alternatives because their experiences are more varied, or know simply whether their life situation is more complicated. The children may even understand the generic term ‘family’ differently because of these different contexts. The same applies to the answers to questions asking children which consumer goods and resources they own or can utilise. The ethical issue raised here is the possibility of misrepresenting or distorting these children’s experiences and circumstances in comparison with those of children who live mainly in one home.40 3.4

Sensitive Questions

• ‘The whole class reacted to some personal questions which are not relevant.’ • ‘There were some questions about appearance that I don’t think you should ask. Many don’t want to answer.’ • ‘I was uncomfortable answering some of the questions.’ 38 39 40

Bynner J ‘Role statuses and transitions in adolescence and young adulthood: Reflections and implications’ (2012) 3 Longitudinal and Life Course Studies 243–53. Bynner J & Chisholm L ‘Comparative youth transition research: Methods, meanings and research relations’ (1998) 14 European Sociological Review 131–50. Graham A, Powell M, Taylor N, Anderson D & Fitzgerald R Ethical Research Involving Children (2013).

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• ‘I think it was personal. Example: “How satisfied are you with your body?”’ • ‘I don’t think you should ask about how we look because it makes children insecure.’ • ‘The questions are about personal issues that you are not supposed to know about. You could rather ask about things in school and not at home. It might be a little private for some.’ • ‘It was good that none of the questions were particularly personal.’ The freedom not to answer all questions in a questionnaire or an interview is an integral part of the informed consent elicited from the participants or custodians, and finding a question as too sensitive is a highly legitimate reason to skip it. The introductory letter from Children’s Worlds underlined that it was acceptable to skip questions if the children felt like it. In addition, the letter stated clearly that we were interested in the children’s views and that consequently there were no correct or incorrect answers. In any event, the introductory letter satisfied the demands usually made by the Norwegian Ombudsman for Research. Furthermore, the teachers were present while the children filled in their questionnaires, could answer queries from the children, and read the questions aloud to the youngest participants. With regard to the comments quoted above, in fact no more than two items in the questionnaire, irrespective of the age of the participants, concerned the children’s physical appearance. We asked them How satisfied are you with the way you look? and How satisfied are you with your own body? as part of a more general list of statements. The number of missing answers turned out to be slightly higher here than for other items in the same question, which indicates that some of the participants felt a degree of reluctance to provide answers. Conversely, the majority of comments we received indicated that at least the children who shared their experiences were comfortable with the questions we asked; one child even pointed out that the questions were not ‘particularly personal’ – one might wonder compared to what. In research about children’s well-being, it is quite common, for instance, to ask children how satisfied they are with their lives in general, their family and friends, their school situation, how they use social media, and even how they feel about their bodies or if they are bullied. What constitutes sensitive questions may vary from one individual to another. Reeves et al. mention friends, parents and bullying.41 Comments in our study focused particularly on questions about the body. 41

Reeves A, Bryson C, Ormston R & White C Children’s Perspectives on Participating in Survey Research (2007).

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We do not know to what extent the children who made these comments chose not to answer the questions they reacted to, or whether they felt the class setting prevented them from reacting openly. Nor can we know how many children felt troubled by some of the questions without commenting. In this regard, an ethical issue arises when negative reactions from participants in a survey become sufficiently significant to justify a new assessment of whether to retain the item in the questionnaire, with reference to the ethical obligation of balancing risk and benefits to the participants. Usually one will not make such a decision on the basis of a small number of comments, but it will be important all the same to underline the participants’ right to skip questions that make them uncomfortable. From a comparative perspective, it is interesting too to see if children from different parts of the world find the same themes sensitive or not. 3.5

Openly Negative Reactions to the Questionnaire

• ‘Stupid questions.’ • ‘Bad.’ • ‘This is bullshit!’ • ‘It was unnecessary and I didn’t like it. It was scary!’ Generally, the children did not make comments like these, but some added them to other critical comments made about questions we had asked about, for instance, their body image. Although we received a few overtly negative comments, some of the other examples cited show that the children could also offer critical reactions in politer and more careful ways. Receiving input like this is never nice, but it is probably impossible to avoid it as long as we invite children to comment freely – and anonymously – on the surveys in which they participate. The children making these comments may have been better off not participating in the survey. The ethical issue concerns the point at which generally negative comments should weigh more than generally positive comments in judging the content of a questionnaire or deciding whether to go through with a study at all. 4 Conclusion • ‘This was a fun survey. The length was ok. What are you going to investigate?’ In this chapter I have discussed five issues illustrating the intersection between methodological and ethical concerns. The first three have to do with design, the last two with traditional research ethics concerns.

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Questions about design will usually be addressed by ensuring that preparations are as thorough as possible. In comparative work, it is particularly important that local concepts and phrases are chosen that are as closely equivalent as possible to the original language of a questionnaire and can be subsequently translated back into comparable concepts in that language. We did this in Children’s Worlds the pre-testing process followed in each of the participating countries. As is very often the case,42 this has meant using English as the reference point relating to English as the original language. The same kind of local sensitivity is important with regard to length of a questionnaire and the choice of scales or response formats. Here, language will not necessarily be the issue, but different contextual factors concerning types of scales, as discussed above, or how long the tests are that children usually have to complete at school. In national surveys, these concerns can be dealt with more easily, although one still has to envisage some kind of ‘average child’ in order to make as many participants as possible feel comfortable with the task. To what extent is this possible in cross-country, comparative research? As discussed above, the dynamics between the general and the particular have been an ongoing concern in the literature on comparative research, a concern that it does not seem possible to solve. Rather, the question is how to balance the ethical and the methodological issues in order to gain comparative knowledge of a sufficiently robust quality. This issue then has to be addressed case by case. In the next rounds of the Children’s Worlds study, it seems reasonable to choose two sets of responses. The first is even more thorough and transparent preparation. The second is open and critical discussion of possible limitations of the results, including reflections on whether children’s views are portrayed in overly positive or negative ways because of the chosen methodologies. It seems as if survey studies across countries almost inevitably end up comparing countries in the sense of ranking them, with results published as league tables.43 This tends to focus national attention on whether one’s own country is ranked high or low, while discussions of the quality of the measures used, or alternative ways of understanding the results obtained, become less interesting. In a globalised world, this issue becomes even more pertinent, particularly if Wells is correct in surmising that Western conceptions of children and their welfare become the dominant view.44 If, on the other hand, comparative 42 43 44

Bynner J & Chisholm L ‘Comparative youth transition research: methods, meanings and research relations’ (1998) 14 European Sociological Review 131–50. Adamson P Child Well-Being in Rich Countries: A Comparative Overview (2013); Richardson D & Ali N ‘An evaluation of international surveys of children’ (2014). Wells K Childhood in a Global Perspective (2015).

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s­ tudies are to create constructive opportunities for learning about one’s own country as well as other countries, it is necessary to present and discuss the results in more detail and with more comparison at the contextual and not only the individual level. For this purpose league tables are not sufficient. Can Children’s Worlds serve as an example of rights-based child research? In my view, it has achieved much with regard to children’s participation and their opportunities for expressing themselves to competent professionals within the survey format. This is in accordance with article 3(3) of the crc, ensuring that the children’s participation rights (art. 12(1)) and the right to freedom of expression (art. 13(1)) are exercised within a non-exploitative context (art. 36). Thus, some ethical and methodological issues would benefit from further discussion and possible revision of the questionnaires. Should methodological and ethical issues lead to a decision not to conduct cross-country surveys among children and young people? In my view, these surveys are useful because they create an important opportunity to learn from other countries, not least if the process of preparing the surveys is transparent and thorough. Also, it is important not to deny children their right to be properly researched because of ethical and methodological issues that are capable of being addressed. Thus, it is necessary to pay more attention to the methodological and ethical issues I have raised in this chapter from the point of view of research ethics and of what ensures proper, rights-based research with children. Bibliography Books

Ennew J & Plateau DP How to Research the Physical and Emotional Punishment of Children (2004) Bangkok: Keen Publishing (Thailand). Save the Children, Southeast, East Asia and Pacific Region Alliance. Graham A, Powell M, Taylor N, Anderson D & Fitzgerald R Ethical Research Involving Children (2013) Florence: UNICEF Office of Research – Innocenti. Percy-Smith B & N Thomas (eds) A Handbook of Children and Young People’s Participation (2010) London: Routledge. Wells K Childhood in a Global Perspective (2015) Cambridge: Polity Press.

Chapters in Books

Sztompa P ‘Conceptual frameworks in comparative inquiry: Divergent or convergent?’ in Albrow M & King E (eds) Globalization, Knowledge and Society (1990) 47–60.

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Journal Articles

Beazley H, Bessell S, Ennew J & Waterson R ‘The right to be properly researched: Research with children in a messy, real world’ (2009) 7 Children’s Geographies 365–78. Bradshaw J & Richardson D ‘An index of child well-being in Europe’ (2009) 2 Child Indicators Research 319–51. Bynner J ‘Role statuses and transitions in adolescence and young adulthood: Reflections and implications’ (2012) 3 Longitudinal and Life Course Studies 243–53. Bynner J & Chisholm L ‘Comparative youth transition research: Methods, meanings and research relations’ (1998) 14 European Sociological Review 131–50. Casas F, Gonzalez M, Navarro D & Aligué M ‘Children as advisers of their researchers: Assuming a different status for children’ (2013) 6 Child Indicators Research 193–212. Collier D & Mahon JE Jr ‘Conceptual “stretching” revisited: Adapting categories in comparative analysis’ (1993) 87 American Political Science Review 845–55. Fattore T, Mason J & Watson E ‘Locating the child centrally as a subject in research: Towards a child interpretation of well-being’ (2012) 5 Child Indicators Research 423–35. Jowell R ‘How comparative is comparative research?’ (1998) 42 The American Behavioural Scientist 168–77. Lloyd K ‘Shared education: Views of children and young people’ (2013) 82 Research Update Belfast: Access Research Knowledge (ARK). Morrow W & Richards M ‘The ethics of social research with children: An overview’ (1996) 10 Children and Society 90–105. Straus MA ‘Phenomenal identity and conceptual equivalence of measurement in cross-national comparative research’ (1969) 31 Journal of Marriage and the Family 233–39.

Reports

Adamson P Child Well-Being in Rich Countries: A Comparative Overview (2013) Florence: UNICEF Office of Research: Innocenti Report Card 11. Rees G & Main G Children’s Views of their Lives and Well-being in 15 Countries: An Initial Report on the Children’s Worlds Survey, 2013–14 (2015) 1st draft report. Reeves A, Bryson C, Ormston R & White C Children’s Persectives on Participating in Survey Research (2007) London: National Centre for Social Research. The Children’s Society The Good Childhood Report (2014) London: The Children’s Society.

Miscellaneous

Andersen D & Kjærulff AM Vad kan børn svare på? Om børn som respondenter i kvantitative spørgeskemaundersøgelser (2003:07) København: SFI.

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Backe-Hansen E ‘Barns deltakelse i spørreskjemaundersøkelser sett i forhold til generelle, forskningsetiske krav’ i Andersen D & Ottosen MH (eds) Børn som respondenter. Om børns medvirken i survey (2002:17) 47–66 København: SFI. Dinisman T & Rees G Findings from the first wave of data collection (2014), available at http://www.isciweb.org (accessed 12 January 2016). Livingstone S, Haddon L, Görzig A & Olafsson K Risks and safety on the internet: The perspective of European children. Full findings and policy implications from the EU Kids online survey of 9–16 year olds and their parents in 25 countries (2012) EU Kids online, Deliverable D4. London: EU Kids Online Network, available at http://eprints .lse.ac.uk/33731/ (accessed 12 January 2016). NOVA Nasjonale resultater 2013 (2014) Oslo: NOVA. Richardson D & Ali N ‘An evaluation of international surveys of children’ (2014) OECD Social, Employment and Migration Working Papers, No. 146, OECD Publishing.

chapter 31

The Legal Effect of Best-Interests-of-the-Child Reports in Judicial Migration Proceedings: A Qualitative Analysis of Five Cases Daan Beltman, Margrite Kalverboer, Elianne Zijlstra, Carla van Os and Daniëlle Zevulun Abstract In 2006 the Study Centre for Children, Migration and Law began research on a method for diagnostic assessments of, and reporting on, the best interests of the child in migration law cases. The reports, which are based on the Best Interests of the Child Model of Kalverboer and Zijlstra (2006) and which are drawn up in line with General Comment No. 14 of the United Nations Committee on the Rights of the Child, currently fill a gap in Dutch migration law and administrative practice regarding the state’s obligation under international law to take the best interests of the child into account in every decision concerning children. This chapter presents the preliminary results of a qualitative analysis of the legal effect of submitting the assessment reports by lawyers in Dutch judicial migration proceedings. The reports strengthen the relevant appeal procedures, although the child depends on a lawyer who is able to make a good transposition of social-behavioural expert opinions into legal terms. The reports also enhance compliance with the crc. However, the best interests of children are not necessarily fairly balanced. Here, General Comment No. 14 may offer an opportunity for lawyers further to substantiate the best interests of the child.

1 Introduction It can be said that the situation of children has generally improved in the 25 years since the un Convention on the Rights of the Child (crc) was adopted, especially in that the crc obligates states to take the best interests of the child into account in decision-making which involves children. However, it was not until 2013 that the un Committee on the Rights of the Child (un Children’s Rights Committee) threw light on the question of how the principle of the best interests of the child – sometimes regarded as a vague concept open to

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abuse1 – must be assessed and determined.2 Thus, it may be anticipated that in the next 25 years children will be even better off than before. The study recounted in this chapter considers the extent to which such an improvement could be achieved in the field of migration law. 1.1 Background of the Study Children are a vulnerable group, even more so those in migration. When the latter enter a host country, with their parents or alone (as an unaccompanied3 or separated4 minor), in search of protection, they may have suffered persecution, starvation, (sexual) violence, war and so on, in their country of origin, in the country they came from and/or during their flight to Europe. Many of them contend with post-traumatic stress, anxiety, fear and/or depression.5 In the best interests of the development of the (vulnerable) child, which is guaranteed by article 6 (the right to life and development) in conjunction with article 3 (the best interests of the child) of the crc, it is essential that the host country provides child-friendly treatment for children entering the country in search of protection. Such treatment should apply in both legal theory and administrative practice: given that a highly vulnerable group of migrants is at issue, a legal approach alone to taking into account the best interests of the child in a decision-making procedure is not sufficient. Therefore, in its General Comment No. 14 (on art. 3 crc) the un Children’s Rights 1 See, for example, Charlow A ‘Awarding custody: The best interests of the child and other fictions’ (1987) 5 Yale Law & Policy Review 267. 2 Council of Europe Conclusions of the European Conference on the ‘Best Interests of the Child’ within the framework of the 25th anniversary of the United Nations Convention on the Rights of the Child (2015) 4. 3 ‘Unaccompanied children (also called unaccompanied minors) are those separated from both parents, or from their previous legal or customary primary care-giver, but not necessarily from other relatives. These may, therefore, include children accompanied by other adult family members’; unicef Inter-Agency Guiding Principles on Unaccompanied and Separated Children (2004). 4 ‘Separated children are those who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so; unicef Inter-Agency Guiding Principles on Unaccompanied and Separated Children (2004). 5 Henley J & Robinson J ‘Mental health issues among refugee children and adolescents’ (2011) 15(2) Clinical Psychologist 51–62; Montgomery E & Foldspang A ‘Validity of ptsd in a sample of refugee children: Can a separate diagnostic entity be justified?’ (2006) 15 International Journal of Methods for Psychiatric Research 64–74; Heptinstall E, Sethna V & Taylor E ‘ptsd and depression in refugee children’ (2004) 13(6) European Child & Adolescent Psychiatry 373–80.

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Committee prescribes a multidisciplinary approach involving professionals who have expertise in matters related to child and adolescent development.6 1.2 The Study Centre for Children, Migration and Law To overcome the gaps between the legal theory and administrative practice7 with regard to decision-making in migration procedures concerning children, the Study Centre for Children, Migration and Law of the University of Groningen (Study Centre) has worked since 2006 as a multidisciplinary team carrying out social behavioural scientific diagnostic assessments of the best interests of the child at the request of lawyers or other legal representatives8 (hereinafter, lawyer). The assessment is conducted using the ‘Best Interests of the Child’ (bic) method,9 developed from a ‘Best Interests of the Child’ model.10 A social behavioural scientific pro justitia assessment report (assessment report) is drawn up on the basis of such an assessment, and submitted by lawyers as 6 7 8 9

10

See under no. 94, available at http://www2.ohchr.org/English/bodies/crc/docs/GC/CRC _C_GC_14_ENG.pdf (accessed 29 January 2016). See footnotes 32 and 36. For instance, legal councillors of the Dutch Refugee Council or guardians of Nidos, the Dutch guardianship institution for unaccompanied minors. Zijlstra AE, Kalverboer ME and Post WJ et al. ‘Could the BIC-Q be a decision support tool to predict the development of asylum-seeking children?’ (2013) 36 International Journal of Law and Psychiatry 129–35. The bic method globally entails: an interview with the child and his or her parents/guardians; an observation of the child (and his or her parents/guardians) during the interview; interviews with professionals, such as physicians, teachers, caregivers and social workers, who work in the child’s environment; the use of ­standardised instruments to identify the social-emotional development of the child and the child-rearing environment. By making use of the bic-method in a specific case, the Study Centre, following a (diagnostic) assessment, first identifies all the interests of the child involved and subsequently determines the best interests. Kalverboer ME & Zijlstra AE Het Belang van het Kind in het Recht [The best interests of the child in law] (2006); Zijlstra AE In the Best Interest of the Child: A Study into a DecisionSupport Tool Validating Asylum-Seeking Children’s Rights from a Behavioural Scientific Perspective (doctoral thesis, University of Groningen, 2012). The bic model is based on behavioural scientific research and contains a list of 14 developmental conditions which should be present in the environment in which the child is raised to ensure a present and future in which, in the best interests of the child, the child’s right to development is fully guaranteed. The following conditions can be identified: adequate physical care; safe immediate physical environment; affective atmosphere; supportive, flexible childrearing structure; adequate example by parents; interest shown in the child; present and future continuity in upbringing conditions; safe wider physical environment; respect; social network; education; contact with peers; adequate role-models in society; and present and future stability in life circumstances.

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an expert opinion on the best interests of the child in administrative and/or judicial migration proceedings.11 1.3 Purpose of Study and Chapter Outline This chapter presents a practice-based assessment of the legal effect of an intervention to overcome a shortcoming in an existing procedure,12 with the focus on judicial migration proceedings before courts of first instance.13,14 A preliminary case study of five cases was conducted as part of a larger study of 25 cases,15 providing new results16 regarding nearly ten years of reporting by the Study Centre. The main question of this case study is: What are the legal effects of submitting a determination of the best interests of the child, as included in an assessment report, to a court? The sub-questions are: (1) How does the lawyer submit and convert the assessment report to the court in his or her grounds for the appeal; and (2) How does the court respond to those grounds and in particular to the assessment report? 11

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Earlier, Kalverboer and Beltman suggested that in future this temporary function of the Study Centre could be taken over by the Child Care and Protection Board (which is part of the Dutch Ministry for Security and Justice). See Kalverboer ME & Beltman D ‘General Comment nummer 14 in vreemdelingenprocedures: de toepassing van General Comment 14 van het VN-Kinderrechtencomité ter doorbreking van de impasse ten aanzien van het “belang-van-het-kind”-beginsel in vreemdelingenprocedures’ [General Comment number 14 in aliens procedures: the implementation of General Comment number 14 of the un Children’s Rights Committee to overcome the deadlock with regard to the ‘best interests of the child’-principle in aliens procedures] (2014) 7–8 Tijdschrift voor Familie- en Jeugdrecht 187–193. Cf. Van Loon D, Van der Meulen B & Minnaert A Effectonderzoek in Gedragswetenschappen: Methodologische Moeilijkheden en Mogelijkheden [Impact research in behavioural sciences: Methodological difficulties and opportunities] (2011). For more information on the Dutch district courts, see https://www.rechtspraak.nl/ English/Judicial-System/Pages/District-courts.aspx (accessed 29 January 2016). A study of the legal effect of submitting the assessment reports in the first-instance procedure is planned. Beltman D et al. (in progress) ‘The Legal Effect of Best-Interests-of-the-Child Reports in Judicial Migration Proceedings: From social scientific evidence to legal and judicial implementation’ (provisional title). Kalverboer ME et al. published in 2011 a preliminary study on the legal effect of submitting assessment reports in the administrative decision-making procedure. See Kalverboer ME, Zijlstra AE, Ten Brummelaar MDC et al. ‘Children first? The significance of child-­ oriented social welfare reports for legal decision-making in asylum procedures’ (2011) 14(1) International Journal of Child and Family Welfare 2–18.

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To set the legal context, Section 2 of this chapter briefly elaborates on Dutch migration procedures and judicial migration proceedings concerning children. Section 3 describes the study’s research method, after which the analysis in Section 4 discusses the way in which the assessment reports are dealt with by lawyers and interpreted in the courts’ judgments. The final section presents the results of this preliminary case study and answers the main and sub-questions. 2

Legal Framework

2.1 Different Kinds of Migration Procedures for Children In the Netherlands several legal procedures exist in the field of migration law. The two main procedures that can be distinguished are the asylum and the managed migration procedure (or ‘regular procedure’). Children who seek asylum in order to receive protection as a refugee (according to the 1951 Convention relating to the Status of Refugees) should apply for a residence permit in the asylum procedure, while other migrant children, such as those wishing to reside in the Netherlands for the purposes of family reunification, must follow the managed migration procedure.17 Each procedure has its own set of procedural and substantive policy rules. 2.1.1

Migration Procedures for Children Seen from a Procedural Viewpoint In the current migration procedures, hardly any special procedural regulations exist with regard to children.18 In the Netherlands the General Administrative

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Special policy regulations exist for unaccompanied minors (para. B8/6 Aliens Circular), children who have been staying in the Netherlands for more than five years (para. B9/6 Aliens Circular), and for ‘westernised’ Afghan girls (para. B8/10 Aliens Circular). Furthermore, children may apply for a residence permit for victims of human trafficking (paras. B9/10 and B9/12 Aliens Circular) or be granted a residence permit on the basis of distressing circumstances (article 3.4(3) Aliens Decree). Procedural safeguards concerning children include: screening by the military police for child-trafficking abuse (para. A1/7.3 in conjunction with para. A5/3.2 Aliens Circular); skeletal bone age-assessment; and child-friendly hearings by officers specifically trained to deal with unaccompanied minors (para. C1/2.9 Aliens Circular and see https://www .ind.nl/EN/Documents/factsheets_asiel.pdf (accessed 29 January 2016)); there are guidelines for hearing children at the Dutch diplomatic or consular representations (https:// ind.nl/Documents/2015_1.pdf (accessed 29 January 2016)). Cf. Bruin R & Kok SG ‘Het kind in de asielprocedure: Lessen uit internationale rapporten’ [The child in the asylum procedure: Lessons from international reports] (2015) 4 A&MR 172–7; Beltman D & Zijlstra

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Law Act (gala) generally applies to migration law procedures as well as judicial migration proceedings.19 From a procedural perspective, after the Immigration and Naturalisation Service (ind) takes a decision in which it either grants a residence permit or rejects the application, the migrant child (separately or as part of a family) has the possibility to appeal against this decision at the aliens division of the court.20 The migrant child’s lawyer then submits a notice of appeal including the grounds for the appeal. If the appeal has been submitted in conformity with the procedural standards,21 the court renders a judgment in which the appeal is declared well-founded or unfounded. In general,22 the court assesses the decision by means of a marginal test of reasonableness, checking mainly whether the ind’s decision is based on sound reasoning, meticulous preparation and a proportional balancing of interests.23 The court’s assessment is included in the judgment by way of legal considerations. If the appeal is declared well-founded, the ind, in most cases,24 is summoned to retake a decision or a part thereof, taking into account the court’s legal considerations. If the ind or the migrant does not agree with the judgment, they may appeal (in last resort) to the (alien’s division of the) administrative jurisdiction division of the Council of State, which may judge the lawfulness of the court’s judgment.

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AE ‘De doorwerking van “het belang van het kind” ex artikel 3 VRK in het migratierecht: Vanuit een bottom-up benadering op weg naar een top-down toepassing’ [The direct effect of article 3 crc concerning the ‘best interests of the child’ in migration law: From a bottom-up approach towards a top-down implementation] (2013) 4 Journaal Vreemdelingenrecht 286–308. However, the Aliens Act may contain specific rules for migration procedures and judicial migration proceedings that deviate from the gala. The procedural route for migrants who follow a managed migration procedure is a little different from that for migrants applying for asylum. A migrant child who disagrees with the decision of the ind in the first instance of a managed migration procedure may object directly against this decision at the ind. The lawyer or the migrant then submits a notice of objection containing the grounds of objections. The ind may then invite the objector for a hearing and fully reconsider the decision which had been taken in the first instance. If the objector disagrees with the decision on the notice of objection, he or she may appeal against this decision at the court. If not, the appeal is declared inadmissible, meaning it is not substantively considered. Since the realisation of the recast Asylum Procedures Directive (2013/32/EU), the court may fully assess the asylum decisions. These are the main general principles of sound administration as specified in articles 3(2), 3(4) and 3(46) of the General Administrative Law Act. Dutch courts may determine themselves that their judgment shall take the place of the annulled decision or the annulled part thereof.

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2.1.2

Migration Procedures for Children Seen from a Substantive Viewpoint From a substantive viewpoint, Dutch migration law and (policy) regulations25 do not contain explicit reference to the obligation under article 3 of the crc to identify, assess and determine the best interests of the child in migration cases involving children.26 Nor does the ind, whose primary task is to implement Dutch migration law and (policy) regulations on behalf of the member of government27 with the portfolio of immigration and asylum (hereinafter, Minister),28 itself directly enforce the legally binding provisions of international conventions. The IND does however follow the Dutch case law regarding article 3 of the crc (and article 24 of the eu Charter), in which the Dutch administrative courts require the best interests of the child to be expressed in the decision.29 Whether or not the ind has balanced the interests fairly, though, is not primarily assessed by the court30 – according to the court, the question of how this should be done has not been specified in the legal migration framework.31 It appears that in the Dutch legal context the concept of the best interests of the child, ensuing from article 3 of the crc, is enforced only as a procedural

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The Aliens Act 2000 (Vreemdelingenwet 2000), the Aliens Decree 2000 (Vreemdelingenbesluit 2000), the Aliens Regulations 2000 (Vreemdelingenvoorschrift 2000) and the Aliens Circular 2000 (Vreemdelingencirculaire 2000). 26 Bruin R & Kok SG ‘Het kind in de asielprocedure: Lessen uit internationale rapporten’ [The child in the asylum procedure: Lessons from international reports] (2015) 4 A&MR 172–7; Beltman D & Zijlstra AE ‘De doorwerking van “het belang van het kind” ex artikel 3 VRK in het migratierecht: Vanuit een bottom-up benadering op weg naar een top-down toepassing’ [The direct effect of article 3 crc concerning the ‘best interests of the child’ in migration law: From a bottom-up approach towards a top-down implementation] (2013) 4 Journaal Vreemdelingenrecht 286–308. 27 Such a member is either a State Secretary or a Minister, depending on the ruling government. Since 5 November 2012 the portfolio has been held by a State Secretary, but for the sake of convenience this chapter uses the term ‘Minister’. 28 See https://ind.nl/EN/organisation/Pages/Organisation.aspx (accessed 29 January 2016). 29 Council of State 7 February 2012, Jurisprudentie Vreemdelingenrecht (jv) 2012/152, ECLI:NL: RVS:2012:BV3716. 30 Nonetheless, the court may sometimes find the ind to have excluded certain child-­ specific elements from the underlying reasoning, most often with reference to the ­European Court of Human Rights’ case law, for example, in District Court, The Hague, auxiliary location Dordrecht, 15 March 2007, ECLI:NL:RBSGR:2007:BA1321. 31 Council of State 7 February 2012, Jurisprudentie Vreemdelingenrecht (jv) 2012/152, ECLI: NL:RVS:2012:BV3716.

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requirement; article 3 can be regarded therefore as having been only partly implemented.32 The same seems true of article 24 of the European Charter of Fundamental Rights (eu Charter), the application of which, contrary to the crc, is restricted to the implementation of European law (art. 51 eu Charter) in administrative decisions.33 Furthermore, while several Directives of the European Union with a focus on asylum and immigration law refer to the crc and the obligation of States Parties to take into account the best interests of the child as a primary consideration,34 these Directives cannot be relied upon directly because they must be transposed first into national law.35 In addition, Dutch procedural administrative law appears to prevent judges from calling the Dutch state to account for a failure to implement the crc (and/or the eu Charter).36 32

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Beltman D & Zijlstra AE ‘De doorwerking van “het belang van het kind” ex artikel 3 VRK in het migratierecht: Vanuit een bottom-up benadering op weg naar een top-down toepassing’ [The direct effect of article 3 crc concerning the ‘best interests of the child’ in migration law: From a bottom-up approach towards a top-down implementation] (2013) 4 Journaal Vreemdelingenrecht 286–308. The scope of this is still under discussion. See Barkhuysen T & Bos AW ‘De betekenis van het Handvest van de Grondrechten van de Europese Unie voor het bestuursrecht: een actualisatie anno 2014’ [The significance of the Charter of Fundamental Rights of the European Union for administrative law: An update anno 2014] (2014) 2 JBplus 96–101 and also De Mol M, Pahladsingh A & Van Heijningen LR ‘Inroepbaarheid in rechte van het Handvest van de Grondrechten van de Europese Unie: Toepassingsgebied en het onderscheid tussen “rechten” en “beginselen”’ [Legal enforceability of the Charter of Fundamental Rights of the European Union: Scope and the distinction between ‘rights’ and ‘principles’] (2012) 6 sew 230–5. For a comprehensive study on the best interests of the child in European Union law, see Smyth C The Common European Asylum System and the Rights of the Child: An Exploration of Meaning and Compliance (2013). Nonetheless, they may be (indirectly) relied on if they are not or insufficiently implemented in national law (see, for instance, Chalmers D, Davies G & Monti G (eds) European Union Law (2014)). The principle of the best interests of the child can be found in, for example, article 5 of the Family Reunification Directive (2003/86/EC); article 5 of the Return Directive (2008/115/EC); article 20 of the Qualification Directive (2011/95/EU); article 25 of the Procedures Directive (2013/32/EU); and article 23 of the Reception Directive (2013/33/EU). Kalverboer ME & Beltman D ‘General Comment nummer 14 in vreemdelingenprocedures: De toepassing van General Comment 14 van het VN-Kinderrechtencomité ter doorbreking van de impasse ten aanzien van het “belang-van-het-kind”-beginsel in vreemdelingenprocedures’ [General Comment number 14 in aliens procedures: The implementation of General Comment number 14 of the un Children’s Rights Committee to overcome the deadlock with regard to the ‘best interests of the child’-principle in aliens procedures] (2014) 7–8 Tijdschrift voor Familie- en Jeugdrecht 187–193.

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Nevertheless, where the best interests of the child in the context of the ­ uropean Convention on Human Rights (echr) are concerned, the outcome E can be different. The echr does not include a specific provision on the best ­interests of the child, but – with reference to article 8 of the echr, regarding the right to private and family life – the case law of the European Court of Human Rights37 does set out several substantive elements concerning the best interests of the child that should be taken into account in cases of alleged violation of this provision.38 Consequently, the Dutch migration legal framework does oblige the ind to apply and assess article 8 of the echr.39 Moreover, and in respect, too, of asylum and return procedures, the best interests of the child may be part of the assessment regarding the question whether the Netherlands should provide subsidiary protection in the sense of non-refoulement, ex article 3 of the echr.40 As it is not common for children to be persecuted in the country of origin, an invocation of article 3 of the echr is based mainly on the fact that, since the children are especially vulnerable, returning them to the country of origin would lead to an inhumane and degrading situation,41 for instance in the sense of severe harm in their development 37

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For example, Sen v the Netherlands European Court of Human Rights, 21 December 2001, available at http://hudoc.echr.coe.int/eng?i=001-64569; Rodrigues da Silva and Hoogkamer v the Netherlands European Court of Human Rights, 31 January 2006, available at http:// hudoc.echr.coe.int/eng?i=001-72205; Üner v The Netherlands European Court of Human Rights, 18 October 2006, available at http://hudoc.echr.coe.int/eng?i=001-77542; Maslov v Austria European Court of Human Rights, 23 June 2008, available at http://hudoc.echr .coe.int/eng?i=001-87156; Neulinger and Shuruk v Switzerland European Court of Human Rights, 6 July 2010, available at http://hudoc.echr.coe.int/eng?i=001-99817; Nunez v Norway European Court of Human Rights 28 June 2011, available at http://hudoc.echr.coe.int/ eng?i=001-105415; Jeunesse v The Netherlands European Court of Human Rights, 3 October 2014, available at http://hudoc.echr.coe.int/eng?i=001-147117. All judgments were accessed on 29 January 2016. For example, the best interests and well-being of children, in particular the seriousness of the difficulties which the children are likely to encounter in the country to which they are to be expelled; the age of the child and level of maturity; the social, cultural and family ties the child has with the country of origin and those he has with the host country; the child’s health and development; the level of dependency on an adult. Ex paras. B7/3(8) and B9/14 Aliens Circular and ex art. 3.6a(1)(a), of the Aliens Decree in conjunction with para. C1/4.1(8) of the Aliens Circular. Ex art. 29(1)(b) Aliens Act in conjunction with para. C2/3(3) Aliens Circular. For example, Nasri v France European Commission of Human Rights, 11 May 1993, available at http://hudoc.echr.coe.int/eng?i=001-25278; D. v The United Kingdom European Court of Human Rights, 2 May 1997, available at http://hudoc.echr.coe.int/eng?i=001-58035; N. v The United Kingdom European Court of Human Rights, 27 May 2008, available at http:// hudoc.echr.coe.int/eng?i=001-86490; M.S.S. v Belgium and Greece European Court of

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they may incur.42 However, from the case law of the European Court of Human Rights it can (still)43 be inferred that granting a residence permit under article 3 of the echr is a possibility only in extraordinary situations where there is an immediate threat to life.44 2.2 The Dependence of the Child on the Lawyer The General Principles of Sound Administration included in the gala45 apply as well to decisions made in migration procedures. Because Dutch migration law does not require the ind to identify the best interests of the child, and the ind itself does not feel obliged to identify and assess the child’s best interests based on, inter alia, article 3 of the crc, migrant children depend largely on their lawyers to submit their ‘best interests’.46 The recast Asylum Procedures Directive (2013/32/EU) may alter this situation, as article 10(3)(d) sets out that ‘the personnel examining applications and taking decisions have the possibility to seek advice, whenever necessary, from experts on particular issues, such as … child-related … issues’. If, on the basis of this provision, a lawyer clarifies to the ind the need for making a best-interests-of-the-child assessment and determination, it may

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­ uman Rights, 21 January 2011, available at http://hudoc.echr.coe.int/eng?i=001-103050; H Sufi and Elmi v The United Kingdom European Court of Human Rights, 28 June 2011, available at http://hudoc.echr.coe.int/eng?i=001-105434; Tarakhel v. Switzerland European Court of Human Rights, 4 November 2014, available at http://hudoc.echr.coe.int/ eng?i=001-148070. All judgments were accessed on 29 January 2016. See Kalverboer ME & Zijlstra AE De schade die kinderen oplopen als zij na langdurig verblijf in Nederland gedwongen worden uitgezet [The developmental harm incurred by longterm resident children when they are forced to return to their country of origin] (2006). The high threshold set in the N. v the United Kingdom case is under discussion as a consequence of some judgments issued by the European Court of Human Rights in 2015. See http://strasbourgobservers.com/2015/04/30/s-j-v-belgium-missed-opportunity-to-fairly -protect-seriously-ill-migrants-facing-expulsion/; http://strasbourgobservers.com/2015/ 05/04/moving-away-from-n-v-uk-interesting-tracks-in-a-dissenting-opinion-tatar-v -switzerland/; and http://strasbourgobservers.com/2015/09/24/grand-chamber-hearing -in-paposhvili-v-belgium-the-end-of-n-v-the-uk/ (accessed 29 January 2016). N. v The United Kingdom European Court of Human Rights, 27 May 2008, available at http://hudoc.echr.coe.int/eng?i=001-86490 (accessed 29 January 2016). Respectively arts. 3(2), 3(4) and 3(46) of the gala. Beltman D & Zijlstra AE ‘De doorwerking van “het belang van het kind” ex artikel 3 vrk in het migratierecht: Vanuit een bottom-up benadering op weg naar een top-down toepassing’ [The direct effect of article 3 crc concerning the ‘best interests of the child’ in migration law: From a bottom-up approach towards a top-down implementation] (2013) 4 Journaal Vreemdelingenrecht 286–308.

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lead to a request from the ind to an expert organisation or a group of experts to draw up an expert opinion on the best interests of the child. When this is done, or when a lawyer submits an assessment report including an expert opinion on the best interests of the child with the application or well before the decision is taken, the ind, according to article 3:2 in conjunction with article 3:4(2) of the gala, must consider the expert opinion. Subsequently, according to article 3:46 of the gala, the best interests of the child which derive from the assessment report should be expressed in the decision. How the submitted interests are weighed up, and what the exact consequences are with regard to the decision, depends largely on the Minister and the ind decision officer acting on his behalf. Hence, it seems, it is up to an individual decision-maker (the ind officer) to make a difference in this regard. Whether or not the report is then put to good use can thus be questioned; this may depend not only on the individual decision officer, but also on how the lawyer submitted the assessment report. 3 Method 3.1 Research Design In order to evaluate the legal effect of submitting an assessment of the bestinterests-of-the-child reports as expert opinions in judicial migration proceedings, we examined cases from a qualitative perspective. This approach allows us to identify issues in the cases under study and understand the meanings and interpretations given to the assessment reports. It also provides an in-depth understanding of the (judicial) processes and considerations with regard to the submission of the assessment reports.47 For a larger-scale study on the legal effect of best- interests-of-the-child reports in judicial migration proceedings, we selected a total of 63 published judgments issued between 1 January 2006 and 1 January 2014. From these 63 judgments, five cases were included in the preliminary case study. In this section we deal first with how the cases were selected and secondly how they were analysed. 3.2 Case Sample Selection 63 judgments were selected which had been published on the websites of the Dutch judiciary and Council of State48 and/or in the online migration 47 Hennink M, Hutter I & Bailey A Qualitative Research Methods (2011) 9–11. 48 See http://www.rechtspraak.nl and http://www.raadvanstate.nl (accessed 29 January 2016). Regarding judgments originally published on the website www.raadvanstate.nl, it

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law ­databank of the Foundation for Migration Law Netherlands (Stichting M ­ igratierecht Nederland)49 between 1 January 2006 and 1 January 2014. All judgments were found by searching in the databases using the terms ‘­Kalverboer’50 or ‘orthopedagogisch’.51 A selection was then made by including only those cases in which an individual assessment report was submitted by a lawyer as an expert opinion. From the 63 cases, 25 were chosen for the large-scale study;52 for the purpose of this present case study, five cases have been selected. In order to create a well-balanced mix, a division was made first on the basis of the final outcome (well-founded vs unfounded cases) and then the type of cases (asylum, family migration, other). All five cases concerned court judgments pronounced between 2009 and 2012. In three of them the Council of State also rendered a ­judgment; although the latter judgments were not reviewed in detail, the outcomes of these appeal proceedings are mentioned as they provide information about the Council of State’s judgment of the concerned court decisions. Moreover, in cases where the Council of State would have quashed the court judgments, the court’s findings of the assessment report can be considered as irrelevant. 3.3 Data Analysis To answer the study’s main question (raised in Section  1.3 of this chapter), three types of data were analysed: the five assessment reports in which the Study Centre provides an expert opinion establishing the best interests of the child; the lawyers’ grounds for the appeal, which are included in the notices of

49 50 51 52

was found that the Council of State, which is responsible for appeals against the court judgments, had decided to withdraw the preceding court judgment from online publication with the Council of State judgment. As a result, certain of the collected court ­judgments which had been published on the Council of State’s website are no longer available on the Internet but are available on request via the first author of this chapter. Until 1 January 2015 this was the forum Institute of Multicultural Affairs. See http:// www.migratieweb.nl (accessed 29 January 2016). The assessment reports are often referred to by the name of the professor concerned. This is because the reports are written in Dutch and known as ‘orthopedagogic assessment reports’. In the other 38 cases the lawyer did not submit an individual assessment report, only a general research report published by Kalverboer and Zijlstra in 2006 on the ‘developmental harm incurred by long-term resident children when they are forced to return to their country of origin’. The report, available only in Dutch, is available at http://www.rug.nl/ research/study-centre-for-children-migration-and-law/publications/schadenota.pdf (accessed 29 January 2016).

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appeal; and the five judgments, in which the courts may have deliberated upon the assessment reports in relation to the specific circumstances of the case. 3.3.1 The Assessment Report Provided by the Study Centre In the assessment report, conclusions are drawn up concerning the development of the child and what his or her best interests are in the migration ­procedures, taking into account future expectations as to residence in the Netherlands or return to the country of origin. The first stage of the research analysis involved identifying the principal findings of the assessment reports, with the emphasis on the child’s current rearing and the future rearing environment as well as any special circumstances in this regard. Secondly, the analysis focused on the best interests which were the most distressing, for instance those regarding the child’s mental and physical state; another relevant factor was the extent of integration in Dutch society. 3.3.2 The Lawyer’s Grounds for the Appeal The lawyer may appeal against a decision and refers to the submitted assessment report in his or her notice of appeal. The analysis of these n ­ otices of a­ ppeal focused on the part in which the grounds for the appeal are s­ubstantiated. The documents were studied by selecting all parts that dealt with the child in ­question: references made to the child’s circumstances; references to legal provisions, such as article 3 of the crc and article 24 of the eu Charter; references to principal Dutch, European or international case law; and, in particular, references to aspects of the assessment report. This analysis provided in-depth understanding of how lawyers submit the assessment reports in judicial migration proceedings. 3.3.3 The Court’s Judgment We took note of what is included in the judgment53 concerning the lawyer’s grounds for the appeal, especially with reference to the assessment report. From the legal considerations in which the court deals with the lawyer’s position, we could deduce what the court’s viewpoints were regarding the assessment report in relation to the specific circumstances of the case. As in Section 3.3.2 above, the judgments were analysed after selecting references to child-related circumstances; to provisions such as article 3 of the crc; to Dutch, European or international case law; and to the assessment report and specific parts thereof. 53

The most important parts of the judgments are the position of parties (the adopted lawyer’s grounds for the appeal and defence from the ind representative), the court’s legal considerations and the court’s final decision (dictum).

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4 Analysis 4.1 General Remarks In this section we examine how lawyers used the main findings established in the assessment reports and analyse the considerations of the court based on the lawyers’ grounds for the appeal and the assessment report. In all five expert opinions we came to the conclusion that it is in the best interests of the child to remain in the Netherlands (ergo to be granted a residence permit which enables legal residence).54 Furthermore, it is important to note that in all cases the children concerned have resided in the Netherlands for at least six years, which generally makes the cases even more distressing as these children often suffer from, inter alia, stress, unremitting suspense, developmental disorders and psychological problems.55 In two cases, the appeal was declared unfounded (as well as that at the Council of State) (cases 1 and 2) and in the other three, well-founded (cases 3, 4 and 5). In two of the latter cases, the Minister did not appeal to the ­Council of State (cases 3 and 5), whereas in the other the appeal at the Council of State was declared unfounded preceding the well-founded appeal at the court (case  4). Three cases thus needed follow-up by the ind, which could either be the granting of a residence permit or a repeat rejection of the application (however, we are not aware of those outcomes). 4.2 Case 1: Kosovo – Asylum In the first case, which concerned a Roma family from Kosovo that applied for asylum, the lawyer attempted to claim a residence permit based on two legal arguments. The first related to the situation in which two children were placed under a family supervision order, which, according to the lawyer, was reason to issue a residence permit under the crc. The lawyer did not further substantiate the invocation of the crc. The court denied this argument on the basis 54

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It might also happen that, all circumstances having been considered, the conclusion is that the child’s best interests are served by return to the country of origin. However, such a conclusion would probably be reached only in the case of children who have not yet been in the Netherlands for very long. We assume that the longer the child’s stay, the greater the chance that an assessment will conclude it is in his or her best interests to remain in the Netherlands. Geltman PL, Grant-Knight W & Mehta SD et al. ‘The “lost boys of Sudan”: Functional and behavioral health of unaccompanied refugee minors resettled in the United States’ (2005) 159(6) Archives of Pediatrics and Adolescent Medicine 585–91; Heptinstall E, Sethna V & Taylor E ‘ptsd and depression in refugee children’ (2004) 13(6) European Child & Adolescent Psychiatry 373–80.

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that placement under a family supervision order is not a relevant ground for granting asylum; the court, however, did not address the invocation of the crc. The second legal argument concerned the invocation of article 3 of the echr and article 15(c) of the eu Qualification Directive.56 The lawyer supported­his invocation by stating that expulsion would lead to the violation of both provisions, since it would result in, inter alia, the deterioration of the children’s developmental state and irreparable harm, given that they experience medical, psychological, social and emotional problems and have a Roma ethnic background. Although the assessment report, which concerned three individual children, substantiated this statement with child-specific arguments, ones which the lawyer brought forward, the court found that the assessment report contains merely general observations lacking a specific focus on children and that it describes only a ‘worrying situation’ with regard to the family environment. Consequently, the court stressed that the assessment report does not provide sufficient evidence of an existing life-threatening situation57 in case of expulsion to the country of origin. 4.3 Case 2: Iran – Family Migration The second case dealt with a mother from Iran who sought family life with her husband and son. The ind found she first had to return to Iran to request a provisional residence permit,58 but the lawyer claimed article 8 of the echr would be violated if she were expelled. The lawyer also said the prospective 56

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Article 15 of Directive 2011/95/EU (the Qualification Directive) concerns ‘serious harm’ for subsidiary protection. According to article 15, serious harm consists of: (a) the death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. Under the currently applied European Court of Human Rights case law (N. v The United Kingdom European Court of Human Rights, 27 May 2008, available at http://hudoc.echr .coe.int/eng?i=001-86490 (accessed 29 January 2016)), article 3 of the ECtHR would be violated if there is evidence of a serious and immediate life-threatening situation. This is a procedure in which the ind assesses the application against the residence conditions while the applicant stays in the country of origin. The provisional residence permit procedure is considered by the ind to last three months, which leads, according to the ind, to a temporary separation. This position was generally accepted by the court, as in, for example, District Court The Hague, auxiliary location Amsterdam, 12 September 2005, ECLI:NL:RBSGR:2005:AU4281 and confirmed by the Council of State, 9 November 2007, ECLI:NL:RVS:2007:BB8353 until the State Secretary’s decision of 24 December 2008 (2008/32, Staatscourant 2009, no. 1637, 6–7), see Council of State, 30 November 2010, ECLI:NL:RVS:2010:BO6323.

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developmental harm to her son, should he remain in the Netherlands with his father, would lead to a violation of articles 3 of the crc and 24 of the eu Charter. The lawyer submitted the assessment report, along with the mother’s psychiatric report. However, he hardly elaborated at all on the content of these reports in relation to articles 8 of the echr, 3 of the crc and 24 of the eu Charter and on the consequences for the son if the mother were not issued a residence permit. The court rejected his grounds for the appeal, stating first that articles 3 of the crc and 24 of the eu Charter cannot lead to a right to residence and, secondly, that article 8 of the echr is not violated since the ind’s decision did not permanently rule out family life. Furthermore, the court considered that, though it could not be expected that the son would join his mother once she was expelled, it was not harmful to him if her expulsion were only temporary. Apparently, in this case the court found that the (impending) separation from mother and her son was not harmful to the son’s development, even though experts indicated in the submitted assessment report that it would be. In so doing, the court seemed unable to consider the best interests of the child fairly within the meaning of article 8 of the echr. 4.4 Case 3: Afghanistan – Asylum Case 3 involved an Afghan family which had lived in the Netherlands for more than 11 years. The lawyer invoked both articles 3 and 8 of the echr, and used the assessment report to state, inter alia, that the children are ‘westernised’ and integrated in Dutch society, making it impossible for them to adapt to the living situation in Afghanistan as they were not familiar with the Afghan language and culture. Expulsion, especially of the daughter(s) of the family, would lead to extreme developmental harm. The court subsequently ruled that the assessment report proved that the family had been ‘westernised’. According to the court, it could not be expected of the family that they would adapt to life in Afghanistan and thereby prevent a violation of article 3 of the echr. The lawyer substantiated the invocation of articles 3 and 8 of echr by adducing several of the assessment report’s findings, in particular that the expulsion of the ‘westernised’ children would cause them severe developmental harm. However, the lawyer’s grounds for the appeal could have been made more detailed by referring specifically to the assessment report’s findings to lend further support to invocation of those articles; for instance, the lawyer could have referred to the mental and socio-developmental problems the children and their parents had in their current child-rearing environment. Moreover, the lawyer did not rely on articles 3 of the crc or 24 of the eu Charter. In regard to the invocation of article 3 of the echr, the court seems

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not to have explicitly assessed if there is a life-threatening situation, even though it perhaps did so implicitly. By making use of the assessment report’s findings, the court concluded that article 3 of the echr stood in the way of expulsion as it could not be expected from the children, especially the youngest daughter, that they adapt to life in Afghanistan. The court took into account that the children had been in the Netherlands from an early age, were raised in a Western society and had never learned Afghan cultural values, and were at an important developmental age; there was also no proof that the children, especially the youngest girl, would be protected by a social network on their return, and it was held that expulsion would lead to the denial of their personal identity, formed mainly in the Netherlands. In this regard the court seems to have considered the lawyer’s arguments in relation to the assessment report and to have determined that the ind’s decision would be in violation of article 3 of the echr if the family were expelled to Afghanistan. 4.5 Case 4: Moldova – Family Migration There was a danger that a mother and daughter from Moldova, who were highly dependent on each other, would be separated because the mother did not possess a provisional residence permit (see, too, Case 2 above). The lawyer invoked article 8 of the echr and relied on the assessment report to prove that ‘more than the normal emotional ties’59 existed between the mother and daughter. Furthermore, the lawyer stated that return to Moldova would harm the daughter’s development. In this case, articles 3 of the crc and 24 of the eu Charter were not relied upon; the lawyer, in his grounds for the appeal, could have also mentioned several more findings in the assessment report in order to further substantiate the invocation of article 8 of the echr. For instance, he did not delve into the psychological problems of the daughter and her mother and the daughter’s suicide attempt. The court considered that the assessment report60 in fact makes it clear that ‘more than the normal emotional ties’ existed between the mother and ­daughter. In this case, the court clearly used the assessment report’s findings for the article 8 echr assessment by taking into account the daughter’s best interests. It also considered that return would be seriously harmful to the daughter, possibly leading to suicide. Usually this consideration is made only in relation to article 3 echr assessments or assessed in the context of article 15(c) 59

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This is an argument based on the case law of the ECtHR regarding the family reunification of adults and adult children; see, for example, Javeed v The Netherlands European Court of Human Rights, 3 July 2001, Application no. 47390/99. Regarding this report, the Minister did not deny that it was drawn up by objective experts.

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of the Qualification Directive,61 since, legally speaking, it concerns an asylum ground. In the article 8 echr assessment at issue, the court apparently took into account the expected child-rearing environment in the country of return as this formed part of the evaluation of the best interests of the child as set out in the submitted assessment report. Furthermore, the court’s acknowledgment that the daughter’s psychological state made her a highly vulnerable girl unable to hold her own without the presence of her mother – which was also part of the article 8 echr ­assessment – was taken directly from the assessment report’s findings. It was thus not the lawyer who had brought this matter to the attention of the court, and the case demonstrates that it may happen that the court applies the assessment report even without any specific reference to it being put forth by the lawyer. 4.6 Case 5: Sri Lanka – Distressing Circumstances The last case concerned a Tamil family from Sri Lanka which had resided in the Netherlands for more than 11 years; here, the children’s ‘westernisation’ also played a big role. The case can be compared to Case 3. The lawyer, however, relied only on article 8 of the echr, in particular the right to private life, and on the crc. The lawyer said article 8 encompasses the right to development, mental health and living where one is rooted and has developed a social identity. The ‘westernised’ family would no longer be able to adapt to the situation in Sri Lanka if they were expelled, but the lawyer did not mention the stress the family was experiencing and the developmental harm the children would suffer if expelled. It seems the lawyer could thus have made greater reference to the assessment report in order to substantiate his invocation both of article 8 of the echr and, in particular, of the crc. The court found, without reference to the crc, that the individual best interests of the child outweighs the general interests of the state. In contrast to Case 3, in which the court based its ruling on article 3 of the echr, the court found that the right to private life, as per article 8 of the echr, would be violated in the event of expulsion. One of the court’s main arguments, taken from the assessment report and also brought forward by the lawyer, is that the children’s social and identity development occurred chiefly in the Netherlands. Moreover, although the lawyer did not mention this argument, the court took into consideration that expulsion would lead to serious harm being done to the children’s development. Legally speaking, this is also (cf. Case 4) a ground that usually would be assessed in the context of article 3 of the echr and ­article 61

For example, District Court, The Hague, auxiliary location Haarlem, 17 December 2009, ECLI:NL:RBSGR:2009:BK8585.

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15(c) of the Qualification Directive.62 In addition, the court took into account the fact that the state had failed to expel the family earlier.63 In essence, the court based its ruling on the children’s ‘westernisation’, their participation in Dutch society and their identity and social development in the Netherlands. The fact that it cannot be expected that the children adapt to life in Sri Lanka – which was brought forward by the lawyer and which served as an important argument in Case 3 – was not taken into consideration. Finally, the court referred to the assessment report independently of what the lawyer brought forward (cf. Case 4). 5

Discussion and Conclusion

5.1 Introductory Remarks Having analysed the five selected cases, we reach some preliminary conclusions about the legal effect of submitting a determination of the best interests of the child, as included in an assessment report, in judicial migration proceedings. Accordingly, in this section we answer the case study’s main and sub-questions. 5.2

Preliminary Conclusions

5.2.1

How the Lawyer Submits the Assessment Report and How the Court Deals with it Regarding the way the lawyers submitted the assessment report, we cannot draw an unambiguous conclusion. Although in all five cases the lawyers brought forward one or more parts of the assessment report by invoking various legal provisions, in most of the cases we find that the lawyers could have referred more specifically to the assessment report’s findings in order to further substantiate their legal arguments. Especially with regard to the current and future psychological and developmental situation of the children, it seems the lawyers could do better by making proper transpositions of these findings into specific legal terms. We assume that, if the lawyers would have expounded on the invocation of articles 3 and 8 of the echr with more specific reference to the assessment reports, the court could have had more points of reference for

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For example, District Court, The Hague, auxiliary location Haarlem, 17 December 2009, ECLI:NL:RBSGR:2009:BK8585. 63 Cf. Jeunesse v The Netherlands ECtHR, 3 October 2014, available at http://hudoc.echr.coe .int/eng?i=001-147117, under 116 (accessed 29 January 2016).

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assessing these provisions, including the best interests of the child within the meaning of articles 3 of the crc and 24 of the eu Charter. Furthermore, it is striking, particularly in comparing Cases 1 and 2, that in Cases 4 and 5 the court took into consideration various findings in the assessment reports that were not put forward by the lawyer. Although it is the court’s task to consider a submitted expert opinion in the legal context of the whole case, we assume that a case will benefit from a lawyer who makes a good legal ‘translation’ of the social behavioural conclusions in the assessment reports in order to facilitate the court’s engagement with them in its judgments. If the assessment reports are not adequately ‘translated’ by the lawyers, the risk is that the reports will not be balanced properly by the courts. By doing so, the lawyer prevents a situation in which the migrant children have to depend on the good understanding and transposition of the assessment report by the court. Moreover, we assume that the more the lawyer refers to specific findings from the assessment reports, the more it strengthens the appeal. Lawyers could use General Comment No. 1464 for assistance in making a ‘translation’. Furthermore, regarding the way the court deals with the submitted assessment reports, we come to the preliminary conclusion that the courts seem to take the expert opinions into consideration arbitrarily. On the one hand, we find that while the court does consider the assessment report, it may trivialise the latter and its findings. In Case 1 the court interprets the assessment report’s content as general observations merely describing a ‘worrying situation’, even when the assessment report specifically describes the current and future developmental harm with regard to the concerned children. In Case 2, a (temporary) separation from the mother is not considered harmful to the child even when the expert opinion states the contrary. On the other hand, the court acknowledges the assessment reports as expert opinions (Case 4) and, moreover, assesses and applies the assessment reports even when a lawyer does not refer to specific findings. With regard to highly vulnerable children, we find it deplorable that courts consider the expert opinions in such an apparently arbitrary fashion. Concerning the invocation of the crc, the above analysis shows that the courts do not really assess the crc, notwithstanding that the lawyers could 64

See Kalverboer ME & Beltman D ‘General Comment nummer 14 in vreemdelingenprocedures: de toepassing van General Comment 14 van het VN-Kinderrechtencomité ter doorbreking van de impasse ten aanzien van het “belang-van-het-kind”-beginsel in vreemdelingenprocedures’ [General Comment number 14 in aliens procedures: the implementation of General Comment number 14 of the un Children’s Rights Committee to overcome the deadlock with regard to the ‘best interests of the child’-principle in aliens procedures] (2014) 7–8 Tijdschrift voor Familie- en Jeugdrecht 187–93.

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have done better to substantiate the invocation of article 3 of the crc (as in Case 1, for example). It is likely that the reason why lawyers placed so little reliance on articles 3 of the crc and 24 of the eu Charter is that they know this will not stand a chance in court (see Section 2.1.2 above). Indeed, under the current Dutch legal migration framework and administrative practice, article 3 of the crc does not provide an independent claim to a residence permit, although the best interests of the child in the context of articles 3 or 8 of the echr may very well lead to lawful residence, which appears to be true in the Cases 3, 4 and 5. Many of the assessment report’s findings can be connected to articles 3 and 8 of the echr. Given that, in terms of current Dutch case law, article 3 of the crc and article 24 of the eu Charter seem to be ‘off-side’ when they are invoked separately, they could be better used as accessory rights in order to substantiate the best interests of the child in the context of articles 3 and 8 of the echr. Also in this regard, lawyers could rely on General Comment No. 14 in order to lend further support to these best-interests-of-the-child provisions.65 5.2.2

The Legal Effect of Submitting Assessment Reports in Judicial Migration Proceedings With regard to the legal effect of submitting the assessment reports, we come to the following (preliminary) conclusions. First, it is striking that families with children who have, according to the court, been proven to be ‘westernised’ and integrated in Dutch society may be granted a residence permit if they rely on either article 3 or article 8 of the echr, in particular the right to private life. In this regard, Cases 3 and 5 are substantially comparable. In both cases the court relies fully on the assessment reports and takes into consideration that the children have been in the Netherlands from an early age; that their development mainly took place in the Netherlands; and that expulsion would lead to serious developmental harm. However, in Case 3 the court considers that expulsion would lead to a violation of article 3 of the echr, and in Case 5 it rules that expulsion would lead to a violation of the right to private life in the sense of article 8 of the echr. In Case 3, the court also takes into account that

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In particular, paras. 55, 56, 60, 61, 65, 66, 70–6 and 84. See Kalverboer ME & Beltman D ‘General Comment nummer 14 in vreemdelingenprocedures: De toepassing van General Comment 14 van het VN-Kinderrechtencomité ter doorbreking van de impasse ten aanzien van het “belang-van-het-kind”-beginsel in vreemdelingenprocedures’ [General Comment number 14 in aliens procedures: The implementation of General Comment number 14 of the un Children’s Rights Committee to overcome the deadlock with regard to the ‘best interests of the child’-principle in aliens procedures] (2014) 7–8 Tijdschrift voor Familie- en Jeugdrecht 187–93.

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it cannot be expected from the children to adapt to life in Afghanistan; that expulsion would lead to denial of their personal (Dutch) identity; and that there was no proof that the children would be protected by a social network in Afghanistan. In contrast, in Case 5 the court also bases its ruling on the children’s participation in Dutch society and the fact that the state had failed to expel the family earlier. From a legal point of view it is obvious that in Case 5, concerning the right to private life, the court focused more on the situation in the Netherlands, ­whereas in Case 3 it devoted more attention to the expected child-rearing environment in the country of origin. We assume that the situation in the return country was more distressing in Case 3 than in Case 5, which was probably the reason why the lawyer placed more emphasis in the appeal on article 3 of the echr than on article 8 (although the lawyer actually relied on both of these provisions). The lawyer in Case 5 probably invoked article 8 of the echr instead of article 3 because the latter has a high threshold in order to make for a successful appeal. In this regard, under article 3 of the echr the best interests of the child have to concern a (proven) immediate life-threatening situation (see Cases 1 and 3) to conclude that this provision is violated (see Section 2.1.2). However, from Case 3 we gather that this life-threatening situation can be at issue implicitly if one can show (with an expert opinion on the best interests of the child) that a ‘westernised’ child,66 having reached an important developmental age, would not be able to adapt to life in the country of return; that there is no proof that the child would be protected by a social network in the country of return; and that expulsion means the denial of personal (Dutch) identity. With regard to Case 1, the court did not take into account the children’s current and future developmental state in the article 3 echr assessment. Perhaps it was of the opinion that the country of origin, in this instance Kosovo, is, in comparison to Afghanistan in Case 3, not a country in which the deterioration of the children’s development would lead to an immediate life-threatening situation. If the threshold is hard to meet (see Case 1), an expert opinion on the best interests of the child that also includes child-specific evidence of the expected return environment may be helpful.67 66

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In this case, we understand from the court that ‘westernised’ children are those who have been in the Netherlands from an early age, have been raised in a Western society, and who have never learned the language and cultural values of the country of return. Zevulun D et al. (in progress) ‘The living situation and well-being of asylum-seeking children after return to Kosovo and Albania’ (provisional title).

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Furthermore, in Case 2, the court, with regard to the provisional residence permit procedure, judges that a temporary separation of the family is not ­contrary to article 8 of the echr. However, we assume that if the lawyer would have shown or proven that it would not be a temporary separation, the court could have come to a different conclusion. An assessment report on the best interests of the child could then have provided evidence that a separation for an indefinite period of time is seriously harmful to the development of the child. Cases 4 and 5 show that an assessment report that elaborates on the best interests of the child can play a decisive role in the article 8 echr assessment. ­Lastly, it is remarkable that, in assessing article 8 of the echr in these two cases, the court takes into account the harm the child incurs if e­ xpelled; ­usually this is considered only in asylum cases where it may be a ground for ­non-­refoulement, within the meaning of, inter alia, article 3 of the echr. 5.3 Final Remarks We can (preliminarily) conclude from this case study that the submission of assessment reports by lawyers in judiciary proceedings definitely could have  a  positive legal effect for migrant children. The analyses show that an assessment report submitted in judicial migration proceedings may lead to a substantive consideration of the best interests of the child by the court, especially in relation to articles 3 and 8 of the echr. We assume that this ­conclusion will hold in the large-scale study too. Furthermore, we find that by s­ ubmitting assessment reports in judicial migration proceedings the quality of decisionmaking is improved, as the rights of the child seem to be better off. However, there is still a long way to go before we are able to conclude that the best interests of the migrant child are fully taken into account in the Netherlands. In order to come closer to achieving this goal, it is essential that the ind and the judiciary accept their responsibility in respecting the rights of the child as enshrined in European and international legislation, inter alia by taking into consideration the ‘best interests of the child’ procedurally as well as substantively and, in so doing, taking due account of the minor’s well-being and social development, as has been instructed in several asylum and immigration law Directives of the European Union (Section 2.1.2). In addition, lawyers can and should do better in representing their vulnerable clients to the best of their ability, given that under the Dutch migration law framework migrant children depend entirely on them for the identification and submission of their best interests. As a first step towards this, we recommend that all the actors embrace General Comment No. 14, since this document can be used as guidelines to

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substantively assess and determine the best interests of the child.68 Moreover, lawyers may base the need for the authorities to conduct a best-interests-ofthe-child assessment on article 10(3)(d) of the recast Asylum Procedures Directive (2013/32/EU) (Section 2.2). Bibliography Books

Chalmers D, Davies G & Monti G (eds) European Union Law (2014) Cambridge: Cambridge University Press. Hennink M, Hutter I & Bailey A Qualitative Research Methods (2011) California: SAGE. Kalverboer ME The Best Interest of the Child in Migration Law: Significance and Implications in Terms of Child Development and Child Rearing (2014) Amsterdam: SWP. Kalverboer ME & Zijlstra AE Het Belang van het Kind in het Recht [The best interests of the child in law] (2006) Amsterdam: SWP. Van Loon D, Van der Meulen B & Minnaert A Effectonderzoek in Gedragswetenschappen: Methodologische Moeilijkheden en Mogelijkheden [Impact research in behavioural sciences: Methodological difficulties and opportunities] (2011) Den Haag: Boom Lemma Uitgevers.

Journal Articles

Barkhuysen T & Bos AW ‘De betekenis van het Handvest van de Grondrechten van de Europese Unie voor het bestuursrecht: een actualisatie anno 2014’ [The significance of the Charter of Fundamental Rights of the European Union for administrative law: An update anno 2014] (2014) 2 JBplus 96–101. Beltman D & Zijlstra AE ‘De doorwerking van “het belang van het kind” ex artikel 3 VRK in het migratierecht: Vanuit een bottom-up benadering op weg naar een topdown toepassing’ [The direct effect of article 3 CRC concerning the “best interests of the child” in migration law: From a bottom-up approach towards a top-down implementation] (2013) 4 Journaal Vreemdelingenrecht 286–308. 68

Kalverboer ME, Beltman D, Van Os ECC & Zijlstra AE ‘The best interests of the child in cases of migration: Assessing and determining the best interests of the child in migration procedures’ (submitted in June 2015 to the International Journal of Children’s Rights) and see also Kalverboer ME & Beltman D ‘General Comment nummer 14 in vreemdelingenprocedures: De toepassing van General Comment 14 van het VN-Kinderrechtencomité ter doorbreking van de impasse ten aanzien van het “belang-van-het-kind”-beginsel in vreemdelingenprocedures’ [General Comment number 14 in aliens procedures: The ­implementation of General Comment number 14 of the un Children’s Rights Committee to overcome the deadlock with regard to the ‘best interests of the child’-principle in aliens procedures] (2014) 7–8 Tijdschrift voor Familie- en Jeugdrecht 187–193.

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Bruin R & Kok SG ‘Het kind in de asielprocedure: Lessen uit internationale rapporten’ [The child in the asylum procedure: Lessons from international reports] (2015) 4 A&MR 172–77. Charlow A ‘Awarding custody: The best interests of the child and other fictions’ (1987) 5 Yale Law & Policy Review 267–90. De Mol M, Pahladsingh A & Van Heijningen LR ‘Inroepbaarheid in rechte van het Handvest van de Grondrechten van de Europese Unie: Toepassingsgebied en het onderscheid tussen “rechten” en “beginselen”’ [Legal enforceability of the Charter of Fundamental Rights of the European Union: Scope and the distinction between ‘rights’ and ‘principles’] (2012) 6 SEW 230–35. Geltman PL, Grant-Knight W & Mehta SD et al. ‘The “lost boys of Sudan”: Functional and behavioral health of unaccompanied refugee minors resettled in the United States’ (2005) 159(6) Archives of Pediatrics and Adolescent Medicine 585–91. Henley J & Robinson J ‘Mental health issues among refugee children and adolescents’ (2011) 15(2) Clinical Psychologist 51–62. Heptinstall E, Sethna V & Taylor E ‘PTSD and depression in refugee children’ (2004) 13(6) European Child & Adolescent Psychiatry 373–80. Kalverboer ME & Beltman D ‘General Comment nummer 14 in vreemdelingenprocedures: De toepassing van General Comment 14 van het VN-Kinderrechtencomité ter doorbreking van de impasse ten aanzien van het “belang-van-het-kind”-­beginsel in vreemdelingenprocedures’ [General Comment No. 14 in aliens procedures: The implementation of General Comment No. 14 of the UN Children’s Rights C ­ ommittee to overcome the deadlock with regard to the ‘best interests of the child’-principle in aliens procedures] (2014) 7–8 Tijdschrift voor Familie- en Jeugdrecht 187–93. Kalverboer ME, Zijlstra AE, Ten Brummelaar MDC et al. ‘Children first? The significance of child-oriented social welfare reports for legal decision-making in asylum procedures’ (2011) 14(1) International Journal of Child and Family Welfare 2–18. Montgomery E & Foldspang A ‘Validity of PTSD in a sample of refugee children: Can a separate diagnostic entity be justified?’ (2006) 15 International Journal of Methods for Psychiatric Research 64–74. Zijlstra AE, Kalverboer ME & Post WJ et al. ‘Could the BIC-Q be a decision support tool to predict the development of asylum-seeking children?’ (2013) 36 International Journal of Law and Psychiatry 129–35.

Reports

Kalverboer ME & Zijlstra AE De schade die kinderen oplopen als zij na langdurig verblijf in Nederland gedwongen worden uitgezet [The developmental harm incurred by long-term resident children when they are forced to return to their country of origin] (2006), available at http://www.rug.nl/research/study-centre -for-children-migration-and-law/publications/schadenota.pdf (accessed 29 January 2016).

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United Nations High Commissioner for Refugees (UNHCR) Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice (2010), available at http://www.unhcr.org/4ba9d99d9.html (accessed 29 January 2016).

Theses

Smyth C The Common European Asylum System and the Rights of the Child: An Exploration of Meaning and Compliance (PhD thesis, University of Leiden, 2013) ‘s-Hertogenbosch: Uitgeverij Boxpress. Zijlstra AE In the Best Interest of the Child: A Study into a Decision-Support Tool Validating Asylum-Seeking Children’s Rights from a Behavioural Scientific Perspective (PhD thesis, University of Groningen, 2012).

Miscellaneous

Beltman D et al. (in progress) ‘The Legal Effect of Best-Interests-of-the-Child Reports in Judicial Migration Proceedings: From social scientific evidence to legal and judicial implementation’ (provisional title). Council of Europe Conclusions of the European Conference on the ‘Best Interests of the Child’ within the framework of the 25th anniversary of the United Nations Convention on the Rights of the Child (2015), available at https://wcd.coe.int/ViewDoc .jsp?id=2306681&Site=CM (accessed 29 January 2016). Kalverboer ME, Beltman D, Van Os ECC & Zijlstra AE ‘The best interests of the child in cases of migration: Assessing and determining the best interests of the child in migration procedures’ (submitted in June 2015 to the International Journal of Children’s Rights). UNICEF Inter-Agency Guiding Principles on Unaccompanied and Separated Children (2004), available at http://www.unicef.org/protection/IAG_UASCs.pdf (accessed 29 January 2016). United Nations Committee on the Rights of the Child, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1) (CRC/C/GC/14), available at http://www2.ohchr.org/English/ bodies/crc/docs/GC/CRC_C_GC_14_ENG.pdf (accessed 29 January 2016). Zevulun D et al. (in progress) ‘The living situation and well-being of asylum-seeking children after return to Kosovo and Albania’ (provisional title).

chapter 32

Article 12: The Translation into Practice of Children’s Right to Participation in Health Care Ana Guerreiro and Kjersti Fløtten1 Abstract Children have the right to be heard and their views taken into account in all their life settings. This chapter aims to map current child experiences in translating children’s right to participation in health care into practice, focusing on the importance of communication and the right to information; the right to participation in decisions affecting their own health; and the right to participation in assessment, planning and decision-making processes. There has been significant progress towards fulfilment of these rights: communication with children has been given increased importance; countries have adopted legislation protecting children’s right to informed consent; and there is ongoing debate on criteria for informed consent, the role of parents and children in decision-making processes, and related issues. Children are also becoming more engaged in decision-making processes across countries. Yet evidence suggests a lack of effective communication with children and a need to address attitudes, knowledge and skills of health professionals, parents and children; to understand further how information is shared with children and how decision-making takes place in health care; and to conduct further research with children. There is also a significant gap between adopted legislation and hospital policies and a need for further investment in children’s participation in the planning, assessment and decision-making processes.

1 Introduction The un Convention on the Rights of the Child (crc) came into force 25 years ago and yet the rights and principles enshrined in the most widely ratified un convention are as relevant and essential to children’s lives today as they were 1

1 The authors would like to thank Raúl Mercer (Argentina), Dragana Nikolic (Serbia), Gabriel Urgoiti (South Africa), Maharajan Muthu (unicef Office for Myanmar), Les White (Australia), Barbara Woynarowska (Poland) and Irma Manjavidze (Georgia) for sharing legislation and insights about child participation in health care in their countries.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_033

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then. It is time to look back, analyse and reflect upon the achievements and what still needs to be done. The crc’s rights are interrelated and interdependent and should be respected, protected and fulfilled in all children’s life settings. This chapter looks at article 12 on the child’s right to be heard and to have his or her views taken into account in the health-care setting.2 Article 12 of the crc, nowadays commonly known as children’s right to participation, has been progressively implemented in the health sector.3 It includes children’s right to information about matters affecting their own health, having their opinions taken into account, being able to give their informed consent to treatment, and participating in the design, development and assessment of health-care services and policies.4 We take it as a premise that children’s participation is a continuous process, and agree with Alderson and Montgomery’s four levels of decision-making in health care, which include ‘to be informed, to express an informed view, to have that view taken into account when decisions are made, and to be the main decision-maker about proposed interventions’.5 This is reflected in our devoting a section to communicating with children. The aim of this chapter is to discuss how article 12 of the crc can be translated into practice in health care. In particular, it discusses the role of communication in relation to article 12, legislation and practice on informed consent, and children’s participation in the development, assessment and improvement of health-care services. The state-of-the-art review was guided by the following questions: • What is known about communication with children in health care? • Is communication with children adequate and effective? • What are the most common criteria used worldwide on children’s informed consent? • What other aspects of decision-making in health care are foreseen by legislation? • Where legislation exists, what is the practice towards the respect, protection and fulfillment of that right? 2 3 4 5

2 Committee on the Rights on the Child, General Comment No. 5 on general measures of implementation of the Convention on the Rights of the Child (2003). 3 Kilkelly U and Donnelly M ‘Participation in healthcare: The views and experiences of children and young people’ (2011) 19 International Journal of Children’s Rights 107–25. 4 Committee on the Rights on the Child, General Comment No. 12 on the right of the child to be heard (2009); Committee on the Rights on the Child, General Comment No. 15 on children’s right to health (2013). 5 Alderson P & Montgomery J Health Care Choices: Making Decisions with Children (1996).

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• How do children participate in the assessment, planning and decisionmaking processes in health care? For the research review, the following electronic databases on health were searched: Medline/PubMed. The search was not limited by country but by the following languages: English, Portuguese, Spanish, Italian, Norwegian, Swedish and Danish. Our references to countries should therefore not be understood as a limitation by country but rather which countries were referenced in the material found. The following search terms were included: • child/children; • adolescent/s; • participation; • communication; • child friendly health care; • health care; • consent; and • decision-making. Grey literature documents were also searched, including World Health Organisation (who) and Council of Europe (CoE) reports and national law databases for the countries included in the review. In selected cases, national experts were contacted and, where applicable, the text was translated from the national language into English. For the legislation review the acts of legislation were read in the original languages by the authors when in English, Portuguese, Norwegian, Italian, Spanish, Swedish and Danish. The studies found were included if they reported empirical research (qualitative and/or quantitative) related to the aims of the review, were published between 1990 and 2014, and were in English, Portuguese, Norwegian, Italian, Spanish, Danish or Swedish. 2

Communication with Children in Health Care

2.1 An Overview of the Present Situation The perception of childhood and the competence of a child has changed drastically over the last decades.6 The crc has established the child as a subject 6

6 Lansdown G The Evolving Capacities of the Child (2005); Veerman P The Rights of the Child and the Changing Image of Childhood (1992); Smith L FNs konvensjon om barnets r­ ettigheter

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with rights of its own. The crc is founded on values of the best interests of the child, of the competent child and of childhood as a time with value of its own.7 To fulfil children’s rights as outlined in the crc, communication with children is one of the core elements (through the right to information, the right to state your opinion in matters affecting you, and the right to participation). The crc celebrated its twenty-fifth anniversary in November 2014, but there is still a long road ahead to fulfil its intentions. Spronk highlights a number of themes that are systematically addressed in the Concluding Observations of the Committee on the Rights of the Child, including lack of data in developing and developed countries, budget allocation for the implementation of economic, social and cultural rights, and training on children’s rights for professionals in the health sector. Emerging themes that have been addressed by the Committee lately include obesity and mental health problems.8 Health has been, and to a large extent still is, seen as a too-complicated matter for children to deal with. When a child is ill, he or she is very often seen as vulnerable and the view is that it is the responsibility of the adult to protect the child. As Coyne and Harder observe, ‘[C]hildren in health-care environments are seen as in need of protection as they are unwell, in an unfamiliar environment and have a lack of knowledge of medical matters.’9 In many cases, it is argued that a child, due to his or her age, would not have the capacity to understand the implications of the situation or would be scared by the information. There has been a misbalance between the argumentation of the core value in the crc of the best interest of the child, which in many cases is seen as synonymous with the right to protection and the right to participation. Lansdown argues that ‘traditionally, the best interests of the child has been defined in terms of what adults think best, and are too often used, in effect, to “trump” all other rights’.10 7 8 9 10

7 8 9

10

in Høstmælingen N, Kjørholt ES & Sandberg K. (red.) Barnekonvensjonen. Barns rettigheter i Norge (2008). Committee on the Rights on the Child, General Comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration (2013). Spronk S The Right to Health of the Child: An Analytical Exploration of the International Normative Framework (2014). Coyne I & Harder M ‘Children’s participation in decision-making: Balancing protection with shared decision-making using a situational perspective’ (2011) 15(4) Journal of Child Health Care 312–19. Lansdown G ‘Implementing children’s rights and health’ (2000) 83 Arch Dis Child 286–88.

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Thus, the best interests of the child is a very important fundamental value, but it has been used in a way that has a potential to deny the child an ageappropriate right to be involved.11 ‘The dilemma, claims Lansdown (1994), is that while the best interest principle is inherently of benefit to the child, it has the potential to be used as a tool by adults to override the wishes and feelings of children.’12 So when using the principle of the best interests of the child, one should widen the scope to argue that in many cases it would indeed be in the best interests of the child to be allowed to voice his or her opinion and take part in decision-making. There is a growing body of literature that argues that age is not necessarily the right measure of how competent a child is, but that what should be assessed is the maturity of the child and his or her competence to understand the matter at hand. The arguments on competency in health are in line with the concept of the evolving capacities of the child. Maturity and competence are dynamic features, which are not only related to age.13 This is also reflected in adopted legislation on children’s right to decision-making in health care, as will be discussed in Section 3 of this chapter. Runeson et al., quote Alderson, who writes: ‘Competence develops, or at least is demonstrated, in response to experience and reasonably high expectations rather than gradually over time through ages and stages.’14 This is reinforced by Coyne and Harder, who argue that ‘[c]ompetence is developed over time and should be guided, we cannot expect our patients to wake up the day they turn 18 and be fully aware of how to participate if they have no prior experience as to how’.15 What is happening in practice is that, from a given moment, a patient, even an adolescent patient, may be expected to take part and be actively involved in his or her own health care, while there has been no prior education or experience of participation. The role of what it is to be a patient has been reinvented in the last decades, but somehow patients themselves have been left behind in the development.16 11 12 13 14 15 16

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Bricher G ‘Children in the hospital: Issues of power and vulnerability’ (2000) 26(3) Pediatric Nursing 277–82. Bricher G ‘Children in the hospital: Issues of power and vulnerability’ (2000) 26(3) Pediatric Nursing 277–82. Lansdown G The Evolving Capacities of the Child (2005). Runeson I, Enskär K, Elander G & Hermerén G ‘Professionals’ perceptions of children’s participation in decision making in healthcare’ (2001) 10 Journal of Clinical Nursing 70–8. Coyne I & Harder M ‘Children’s participation in decision-making: Balancing protection with shared decision-making using a situational perspective’ (2011) 15(4) Journal of Child Health Care 312–19. Coulter A Engaging Patients in Healthcare (2011).

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In child health care, there are a number of challenges affecting the patients’ active involvement in their own care. Livesly and Long, in a study involving hospitalised children, state that when children did make their voices heard, it was seen as a challenge.17 In many discussions around participation some seem to have the misconception that participation means that children should have the final say in all decisions or that the child will be left alone with the decision, while in reality not even adult patients make decisions entirely on their own detached from their social network. Are adults at large afraid to let children participate based on an unwillingness based on false grounds? Importantly, Coyne and Harder found in their research that ‘even when children are deemed competent of making healthcare choices, they still desire support and favor shared decision-making in conjunction with family members and health professionals (Alderson, 1993; Coyne et al., 2006; Zwaanswijk et al., 2007)’.18 Even though some countries have come far in terms of domestic legislation regarding health and health care, research still shows that there is a lack of effective communication with children.19 ‘The research studies that have been conducted with children in hospital indicate that children have varying experiences of being consulted and involved in their care […] and that children experience less than optimal communication.’20 Parents and children have been seen as a unit in which the parent can speak for the child and know what is best for the child. Even though parents in many cases do know their child best, parents are not good enough proxies for their child. The need for more evidence on the communication process with children, including 17 18 19 20

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Livesly J & Long T ‘Children’s experiences as hospital in-patients: Voice, competence and work. Messages for nursing from a critical ethnographic study’ (2013) 50(10) International Journal of Nursing Studies 1292–303. Coyne I & Harder M ‘Children’s participation in decision-making: Balancing protection with shared decision-making using a situational perspective’ (2011) 15(4) Journal of Child Health Care 312–19. Coyne I ‘Consultation with children in hospital: Children, parents’ and nurses’ perspectives’ (2006) 15 Journal of Clinical Nursing 61–71; Coyne I & Gallagher P ‘Participation in communication and decision-making: Children and young people’s experiences in a hospital setting’ (2011) 20 Journal of Clinical Nursing 2334–343; Lambert V, Glacken M & McCarron M ‘“Visible-ness”: The nature of communication for children admitted to a specialist children’s hospital in the Republic of Ireland’ (2008) 17 Journal of Clinical Nursing 3092–102; Runeson I, Enskär K, Elander G & Hermerén G ‘Professionals’ perceptions of children’s participation in decision making in healthcare’ (2001) 10 Journal of Clinical Nursing 70–78. Coyne I ‘Consultation with children in hospital: Children, parents’ and nurses’ perspectives’ (2006) 15 Journal of Clinical Nursing 61–71.

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studies consulting children directly and not health-care professionals and parents, has been argued by several researchers.21 As noted by Coyne, ‘[T]he lack of research with children rather than on children has been recognised as a problem in the literature (Eiser, 1990; Alderson, 1993; Morrow & Richards, 1996).’22 2.2 Practical Implications Coyne and Gallagher show in their research that children want to take part in decisions about small everyday actions in their care.23 Additionally, ‘it seemed that information about illness and treatments generally helped to make the children feel actively involved in their treatment and consequently this appeared to help them feel more in control’.24 Other research shows that not all children want to know everything, and some feel that they get too much information.25 Lambert therefore argues that there is a need for communication assessment strategies to enable health professionals to find the ideal position with every child. It may differ from situation to situation, even for the same child. Sometimes children prefer to be a ‘passive bystander’ and at other times they want to be an ‘active participant’. Health professionals need to be aware of this and act accordingly. As Coyne and Harder argue, ‘[C]ompetence in healthcare should be seen as a decision-specific and situation-relative issue, rather than just age-related (Koocher and De Maso, 1990).’26 In 2011 the Norwegian Ombudsman for children appointed a special advisory board of children with experience of being hospitalised. This group made a charter of ten messages from children to health professionals. The first point they make is that children want information from the health professionals and

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Lambert V, Glacken M & McCarron M ‘“Visible-ness”: The nature of communication for children admitted to a specialist children’s hospital in the Republic of Ireland’ (2008) 17 Journal of Clinical Nursing 3092–102. Coyne I ‘Consultation with children in hospital: Children, parents’ and nurses’ perspectives’ (2006) 15 Journal of Clinical Nursing 61–71. Coyne I & Gallagher P ‘Participation in communication and decision-making: Children and young people’s experiences in a hospital setting’ (2011) 20 Journal of Clinical Nursing 2334–43. Coyne I ‘Consultation with children in hospital: Children, parents’ and nurses’ perspectives’ (2006) 15 Journal of Clinical Nursing 61–71. Lambert V, Glacken M & McCarron M ‘“Visible-ness”: The nature of communication for children admitted to a specialist children’s hospital in the Republic of Ireland’ (2008) 17 Journal of Clinical Nursing 3092–102. Coyne I & Harder M ‘Children’s participation in decision-making: balancing protection with shared decision-making using a situational perspective’ (2011) 15(4) Journal of Child Health Care 312–19.

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not just their parents. They go on to say that, amongst other things, they want health professionals to use words they can understand, not abbreviations and Latin, and that they should not talk too fast. They want health professionals to ask them questions, to be interested in what they have to say and to communicate with them in a friendly way. These are clear and concrete messages for health professionals.27 Another key factor in communicating with children is to avoid tokenism.28 When children are asked for their opinions they need to understand that there is a genuine interest in their response. Some children feel that they are being paid ‘lip service’.29 They are asked for their opinion, but soon after their parents are asked the same question. Coyne goes on to say that ‘children’s perceptions of their personal value are important because research suggests that there is a relationship between self-esteem, and self-worth and medical outcome’. She also points out that there is a growing body of research showing that empowerment of children and adolescents in their health care has positive benefits.30 Marta Santos Pais explains clearly how children’s involvement in decisionmaking should take place. She argues that it is not sufficient to allow children to express their views. […] Children’s views should not be simply ignored, nor automatically endorsed, but should genuinely be able to influence the decision to be taken. […] Combining assistance, direction and guidance with respect for the views of the child, giving the child the opportunity and capacity to understand why a particular option, and not another, was followed, why a particular decision was taken and not another one the child might have preferred.31 There is a need to address the attitudes, knowledge and skills of health professionals, parents and the children themselves when it comes to communication. This is reflected in the Concluding Observations of the Committee on the 27 28 29 30 31

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Barneombudet (2011) Sykehusekspertenes 10 bud. Hart R Children’s Participation: From Tokenism to Citizenship (1992); Hart R Children’s Participation: The Theory and Practice of Involving Young Citizens in Community Development and Environmental Care (1997). 29 Coyne I ‘Consultation with children in hospital: Children, parents’ and nurses’ perspectives’­(2006) 15 Journal of Clinical Nursing 61–71. 30 Coyne I ‘Consultation with children in hospital: Children, parents’ and nurses’ perspectives’ (2006) 15 Journal of Clinical Nursing 61–71. 31 Santos Pais M in United Nations Manual on Human Rights Reporting under Six Major International Human Rights Instruments (1997).

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Rights of the Child, as mentioned above, and the Council of Europe Guidelines on child-friendly health care.32 Health professionals working with children need to have special training not only in particular areas of child health but children’s characteristics and capacities. Health professionals have to be aware of the power balance in their relationship with the children. Like it or not, children (and parents) are most often not in a position of power. So health professionals have to learn how they can best communicate with their child patients so that they create a space where the child understands that his or her knowledge and opinion is valued. Lambert writes that ‘the child’s increased involvement was partly as a result of the doctor allocating the child more space within the consultation and also partly because of the child taking more initiative’.33 When children understand that they are allowed to take part, they child will do so increasingly if they want to. Among the main factors affecting communication with children are parents themselves. Runeson et al., point out that some parents may see their child’s needs and argue their child’s case to health professionals; other parents do not see these needs.34 Most likely this is not out of ill intent. Health professionals have to keep in mind that parents and children in a health-care setting are most likely out of their comfort zone, in many cases in a crisis, and parents want to do what is best for their child. They need guidance from health professionals, which they trust in the situation in which they find themselves. Parents too may need guidance about the competence of children. Rather than making communication too schematic, the focus should be on the basic opening questions, such as ‘Can you tell me what you know about your illness?’ ‘How much do you want to know about your illness or your procedures?’ and ‘What can we do to make this easier for you?’ Time should be taken in appointments to get to know the child and build a relationship. At an organisational level, resources should be allocated for training health professionals working with children on how to communicate with them. There is a need for more research evaluating communication processes and focusing on children’s perceptions rather than adults’ understandings of what children want and need. 32 33 34

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Council of Europe, Guidelines on child-friendly health care (2011). Lambert V, Glacken M & McCarron M ‘“Visible-ness”: The nature of communication for children admitted to a specialist children’s hospital in the Republic of Ireland’ (2008) 17 Journal of Clinical Nursing 3092–102. Runeson I, Enskär K, Elander G & Hermerén G ‘Professionals’ perceptions of children’s participation in decision making in healthcare’ (2001) 10 Journal of Clinical Nursing 70–8.

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Legislation and Practice on Children’s Participation in Decisions Affecting their Health

This section deals with legislation on children’s participation in decisionmaking processes affecting their own health. This includes children’s right to informed consent to procedures or treatment, as well as other decisions, such as those relating to abortion and hiv testing. This is followed by Section  4, which presents available literature assessing how health-care providers ­apply legislation. The objective in Section  4 is not to present an extensive list of ­legislation or practices in countries around the world but to outline the different criteria available, to discuss available literature about the implementation of legislation by health-care providers, and to identify challenges and gaps in legislation, practice and research. The adoption of the Charter of the European Association for Children in Hospital,35 in addition to the crc, contributed significantly to the development of patient charters and the inclusion of social and cultural rights in health legislation at national level. Progressively, countries around the world have adopted legislation on various aspects of children’s participation in decision-making processes affecting their own health. The first that will be discussed here is children’s right to informed consent to procedures or treatment. Presently, there are three main situations relating to legislation on children’s informed consent, worldwide, namely: • countries that have not adopted specific legislation on informed consent; • countries that have adopted specific legislation on informed consent and which define a certain age from which children can legally and independently decide about a procedure or treatment course; and • countries that have adopted specific legislation on informed consent to procedures and treatment, on the basis of children’s capacity and maturity, independently of their age. Policy on consent based on children’s capacity and maturity often is an addition to legislation based on age, as will be discussed below. Table 32.1 presents legislation in a number of countries in different regions of the world, by criteria. The list is non-exhaustive and aims to demonstrate the variety of legislation rather than the available legislation in all countries in the world.

35

35

European Association for Children in Hospital Charter of the European Association for Children in Hospital (1986).

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Table 32.1 Legislation included in the review, by criteria on informed consent and country

Criteria on informed consent

Group of countries where it is in force

From 12 years of age From 14 years of age

South Africa New South Wales (Australia), Province of Quebec (Canada), Uzbekistan Denmark, Serbia South Australia (Australia), Georgia, Netherlands, Norway, Poland, Portugal, Spain, Republic of Ireland England, Northern Ireland, Scotland and Wales New Zealand, Nigeria Chile, Cuba, Mexico and Myanmar

From 15 years of age From 16 years of age

From 16 years of age or below if the child is competent Based on competency or capacity Legislation on informed consent does not mention children specifically/no national legislation on informed consent Other In Argentina, legislation states that ‘boys, girls and adolescents have the right to participate in decisions related to therapies or medical procedures related to their health’.

As can be seen, there are two types of criteria regulating children’s informed consent to treatment and procedures which are predominantly used. The most common fixed age from when a child is able to consent is 16, particularly in European countries. The second most-used criteria is that based on children’s competency. The so-called Gillick competency derives from the Gillick v West Norfolk and Wisbech aha case (1986), where the court’s ruling stated that

36

36

whether or not a child is capable of giving the necessary consent will d­ epend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent.36 Hastings AM & Redsell S Listening to Children and Young People in Healthcare Consultations (2010).

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This is reflected in United Kingdom (uk) legislation, Australian and Canadian, among others. The Scottish Age of Legal Capacity Act (1991) states that a person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment. In New South Wales (Australia), legislation states that a child aged 14 and above may consent to their own treatment provided they adequately understand and appreciate the nature and consequences of the operation, procedure or treatment. However, if the child is 14 or 15 years of age, it is prudent for practitioners or hospitals to also obtain the consent of the parent or guardian, unless the patient objects. In a number of countries, national laws on patient rights or health care include no provisions on informed consent or other decisions in health care for minors. This is the case for Chile, Cuba and Myanmar. In Chile, the draft legislation text on the Law on Patient Rights presented in 2001 and revised in 2008 included provisions on information and informed consent for minors in articles 8 and 16. However, in the text published in 2012, the reference to minors was not included.37 In Cuba, existing public health legislation (Laws number 41 and 139 of 1983) does not include any provisions regulating informed consent to treatment and procedures either.38 In Myanmar, in the current Child Law (1993) and its Rules (2001), where child’s rights to health and the state’s respective obligations are defined, there is no mention of regulations or procedures related to consent for medical treatment. Currently, the Child Law is under revision and it is anticipated to include provisions on consent to medical examinational and treatment once the country starts drafting new Rules for the Child Law.39 In addition to informed consent to treatment and procedures, countries have adopted legislation on children’s right to participation related to specific

37 38 39

37 38

39

León Correa F ‘Información y consentimiento informado de menores de edad en Chile’ (2012) 83(2) Rev chil pediatr. López S et al., ‘Relación médico paciente y consentimiento informado en cirugía pediátrica: teoría y realidad en la práctica local’ (2009) 7(4) Revista Electrónica de las Ciencias Médicas en Cienfuegos. Personal communication, unicef Country Office for Myanmar.

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matters of health care, such as voluntary interruption of pregnancy (hereinafter, abortion), hiv testing and other (see Table 32.2). In Portugal, pregnant adolescents from 16 years old are legally entitled to take the decision to perform the voluntary interruption of pregnancy (Penal Code, Article 142, number 3, paragraph b).40 In Italy, children have the right to request for abortion, without age restrictions (Italian Law 194/1978). Table 32.2 also presents countries with laws and regulations that allow minor adolescents to seek hiv testing and Table 32.2 Other aspects of children’s right to decision-making in health included in national legislation, per country

Aspects of decision-making

Countries where it is in force

Children have the right to request for abortion, without age restrictions Children have the right to request for abortion, from age 16 Laws and regulations allow minor adolescents to seek hiv testing and counselling services without parental/ spousal consent

Italy Portugal Argentina, Benin, Bermuda, Botswana, Brazil, Bulgaria, Burkina Faso, Cambodia, Chad, Colombia, Comoros, Congo, Costa Rica, Côte d’Ivoire, Cuba, Ecuador, El Salvador, Equatorial Guinea, Ethiopia, Eritrea, Gambia, Ghana, Guatemala, Guinea, Guyana, Honduras, Indonesia, Iraq, Kenya, Kiribati, Kyrgyzstan, Lesotho, Malawi, Malaysia, Maldives, Mali, Morocco, Myanmar, Nepal, Niger, Nigeria, Oman, Panama, Papua New Guinea, Paraguay, Republic of Moldova, Senegal, Sierra Leone, South Africa, Sri Lanka, Sudan, Swaziland, Tajikistan, Timor Leste, Togo, Uganda, United Republic of Tanzania, Uzbekistan, Vanuatu, Vietnam41

40 41

40 41

Health Regulation Authority Informed Consent: Final report (2009) Portugal. who ‘Adolescent health policy indicators and law regulations’ (2014).

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counselling services without parental/spousal consent. These include countries from all continents. A number of criteria regulated nationally for children’s participation in health care have been presented. Next, we would like to present the main findings as to how that same legislation is applied. A first and significant problem arises in evaluating the implementation of children’s right to participation in health care: the lack of monitoring systems at national level. who’s report on the Consultation on improving measurement of the quality of maternal, newborn and child care in health facilities states: In most countries, there is no national accreditation system or mechanism to monitor the quality of care provided in health facilities, despite the availability of evidence-based guidelines and tools. A few countries have mechanisms to assess the quality of health care, but they are usually for specific population groups, conducted at a limited number of sites and address issues of care of national relevance. Such accreditation systems do not adequately address the dynamic nature of quality of care and the associated problem-solving necessary to improve care.42 Most of the literature available that can provide evidence on the implementation of children’s right to participation is based on studies conducted by researchers in local sites. However, despite this, it is possible to draw significant insights as to the dynamics and the effective implementation of this right. Available studies assessing children’s effective participation in decisionmaking processes in health care demonstrate that children’s experiences vary. Some children receiving care are informed in a manner they can understand, they are involved in the decision-making processes and, where possible, give informed consent to treatment, whilst other children receiving care in the same institutions feel excluded from decision-making processes and have overall negative experiences regarding their right to information and participation. Runeson et al.,’s observational study with 24 children aged 5 to 18 found that ‘children are allowed to participate to different degrees. It also showed that, in some situations, children should be allowed to participate to a higher degree’.43 Coyne performed a study with children, parents and nurses on

42 43

42 43

who ‘Adolescent health policy indicators and law regulations’ (2014). Runeson I et al., ‘Children’s participation in the decision-making process during hospitalization: An observational study’ (2002) 9(6) Nursing Ethics 583–98.

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their views about participation in care in the health-care setting.44 Some children reported they had been involved in their care; others felt excluded from decision-making and reported they had not been able to understand the information given by the doctors; and ‘other children noted that the doctor’s consultation ranged from ignoring them completely or discussing decisions with other doctors or the parents in front of them’.45 Different studies assessing children’s rights to information and participation in health-care institutions show similar results. An assessment of c­ hildren’s rights in 15 hospitals in Europe and Australia demonstrated that children’s right to information and participation was the least fulfilled in a group of 12 rights in hospital. Importantly, children’s statements reflect ‘the need to improve doctor/nurse-patient communication and also that this communication is highly dependent on the individuals’.46 A recent assessment of children’s rights in 11 hospitals in Kyrgyzstan and 10 hospitals in Tajikistan by the Regional Office for Europe of the World Health Organisation demonstrated similar results. In Kyrgyzstan most of the hospitalised children reported being adequately informed and able to participate in the decision-making process, whilst in Tajikistan the assessment showed a truly mixed experience. Some children, in some cases in the same hospital, were informed while other children were not informed, some were able to give their informed consent to treatment, others were not, and so on.47 A study by Coyne and others in Irish hospitals show similar results.48 Table 32.3 low presents some of the issues retrieved from the literature reviewed on various aspects of participation, arranged by author and year. The extent to which children’s right to participation is effectively respected is dependent upon a variety of factors. These include the child’s protest; the 44 45 46 47 48

44 45 46

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48

Coyne I ‘Consultation with children in hospital: Children, parents’ and nurses’ perspectives’ (2006) 15 Journal of Clinical Nursing 61–71. Coyne I ‘Consultation with children in hospital: Children, parents’ and nurses’ perspectives’ (2006) 15 Journal of Clinical Nursing 61–71. Simonelli F & Guerreiro AIF (eds) The Respect of Children’s Rights in Hospital: An Initiative of the International Network on Health Promoting Hospitals and Health Services. Final Report on the Implementation Process of the Self-evaluation Model and Tool on the Respect of Children’s Rights in Hospital (2010). Guerreiro AIF (ed) ‘Assessing the respect of children’s rights in hospitals in Kyrgyzstan and Tajikistan. who project: Improving the quality of paediatric care in the first level referral hospitals in selected countries of Central Asia’ (2014). Coyne I, Hayes E, Gallagher P & Regan G Giving Children a Voice: Investigation of Children’s Experiences of Participation in Consultation and Decision-making in Irish Hospitals (2006).

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Table 32.3 Issues retrieved from the literature reviewed, by author and year

Issue

Main findings

Factors ­enhancing Communication, relationships, children’s environment, courtesy and participation respect, respect for individuality of each child. Inconsistency in legislation Inconsistency in practice

Communication

Parents’ role

­Professionals’ knowledge, ­attitude and role

Author and date

Curtis et al., (2004) in Livesley and Long (2013); Lambert, Glacken & McCarron (2008); Coyne I & Harder M (2011) There are various ages for conStrode, Slack & sent to different procedures such Essack (2010) as abortion, treatment and hiv testing at national level. Children report varying Simonelli & Guerreiro experiences of participating (2010); Guerreiro in decision-making processes (2014); Runeson et in the same institutions. al., (2002); Lambert, Glacken & McCarron (2008) Communication between the Coyne (2006); Coyne health professional and the child & Gallagher (2011); is not the best possible. Lambert et al., (2008) ; Runeson et al., (2001) Coyne I (2006); Nurses appeared to feel that Runeson et al., children’s involvement in (2001) decisions about their care was dependent upon the parents’ approval and permission. Parents can be supportive because they understand their child’s needs or they do not and then they influence their child’s participation negatively. Studies show that attitudes of Mårtenson EK & health-care professionals to Fägerskiöld AM children are mainly grounded in (2007) personal values and beliefs.

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Issue

Main findings

Children’s Children’s self-determination self-determination should be promoted to enable them to learn and participate in decision-making over a period of time. Refusal of While children may give their treatment consent to treatment, studies show that children usually do not have a right to refuse treatment.

Author and date Coyne & Harder (2011)

Bricher (2000) in Coyne (2008); Zenon (2012)

role of parents; knowledge and attitudes of staff; values and beliefs; and time factors.49 Importantly, children have highlighted that the following factors hinder their participation: fear of causing ‘trouble’ by asking questions; lacking time with health professionals; difficulty contacting health professionals; being ignored; being disbelieved; health professionals not listening; not knowing health professionals; difficulty understanding medical terminology; being sick; and parents’ actions.50 The issues presented here raise a number of questions regarding the adoption and implementation of legislation on informed consent. The first issue for further enquiry would be: after the adoption of national legislation, how 49 50

49

50

Runeson I et al., ‘Children’s participation in the decision-making process during hospitalization: An observational study’ (2002) 9(6) Nursing Ethics 583–98; Coyne I ‘Consultation with children in hospital: Children, parents’ and nurses’ perspectives’ (2006) 15 Journal of Clinical Nursing 61–71 and Coyne I ‘Children’s participation in consultations and decisionmaking at health service level: A review of the literature’ (2008) 45 International Journal of Nursing Studies 1682–689; Mårtenson and Fägerskiöld ‘A review of children’s decisionmaking competence in health care’ (2007) 17 Journal of Clinical Nursing 3131–141. Coyne I ‘Children’s participation in consultations and decision-making at health service level: A review of the literature’ (2008) 45 International Journal of Nursing Studies 1682–689.

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are health institutions bound to implement that legislation, and are there effective monitoring mechanisms in place? Secondly, how do parents and children receive information about their rights to information and participation? Thirdly, are health professionals trained to have the necessary skills to engage children of different ages and capacities in decision-making? Finally, it is important to enquire into the kind of decisions taken by children and how these take place. The literature available provides valuable evidence about how children are being involved, the quality of their participation, the challenges they face, and what factors hinder and enhance their effective participation. On the other hand, it also suggests a number of challenges that need to be addressed in order to enhance children’s participation in decisions affecting their own health. In addition to the ones mentioned already, it would be valuable to undertake more research on inconsistencies in legislation regulating children’s right to participation; the right to consent and to refuse treatment equally; how to address influencing factors; and how to establish monitoring and evaluating mechanisms. Finally, there is a great need to discuss proposals on how to ensure that participation in health care becomes a systematic process and a reality for all children accessing health services. 4

Children’s Participation in Development, Assessment and Improvement of Health-Care Services

This section discusses how children can participate in the development, assessment and improvement of health-care services, further to which it provides examples of different types of participation, nationally and internationally. At the end of the section, consideration is given to the effective participation of children and what could be done to enhance it in future. The section provides examples of three types of participation, namely: • children’s participation in national consultations to inform policy-making; • children’s participation in the development of projects in relation to their own health; and • children’s participation in the assessment and improvement of health-care services. 4.1 Background The recently adopted Committee on the Rights on the Child General Comment on children’s right to health (2013) and the Council of Europe Guidelines

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on child-friendly health care (2011) emphasise that children’s right to participation in health care does not solely include their participation in decisions affecting their own health, but also their participation in the development, assessment and improvement of health-care services. To involve children in consultations to inform policy-making, assess health-care services or in other types of participation, similarly to children’s participation in matters affecting their own health, it is essential to prepare them by taking into account their evolving capacities, information needs and knowledge of different subjects. We agree with Treseder’s proposal for children’s participation. Based on degrees of participation, it suggests that there is [n]either a progressive hierarchy nor a particular sequence in which participation should always be developed (and) that there needs to be – and that there should be – no limit to the involvement of children and young people, but that they will not be able to engage in child-initiated and directed projects right away and need to be empowered adequately to be able to fully participate.51 The degree to which children may participate in decision-making processes varies. This is closely related to the extent to which they are informed or know about a particular subject, to their knowledge about the possibility of being more active members in society, as well as to the culture of participation in a given society. Davey et al., suggest four core principles for children’s participation, namely, ‘listening to children of all ages; considering participation as a process not an event; be[ing] clear about the achievements of participation; and weav[ing] the participation of children into the culture of organisations and wider society’.52 Children’s Participation in National Consultations to Inform Policy-Making As already mentioned, children of different ages are able to participate in decision-making processes, which may take several forms. In Ireland, the Department of Children and Youth Affairs (dcya) has put in place participating structures to inform evidence-based policy and decision-making (that is, national youth parliament and local youth councils). Children have been

4.2

51 52

51 52

Treseder P (1997) in Creative Commons Participation Models: A Chase through the Maze 2 ed (2012). Davey et al., Children’s Participation in Decision-Making. A Summary Report on Progress Made up to 2010 (2010).

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c­ onsulted by the dcya in the planning process of both its 2000–2010 National Children’s Strategy Our Children – Their Lives and the recently adopted Children and Young People’s Policy Framework.53 Regarding the first strategy, more than 250 children aged 8 to 19 were consulted in the framework of the development of a set of indicators on children’s well-being.54 Another interesting example is the Health Behaviour in School-Aged Children (hbsc) research study, which comprises 44 countries around the world and whose main study partner is who Europe. The study ‘aims to gain new insight into, and increase understanding of health behaviours, health, wellbeing, lifestyles and social contexts of young people in different countries’,55 by promoting, inter alia, surveys with children aged 11, 13 and 15 every four years. The data collected are used to inform policy-making and planning. Children’s Participation in the Development of Projects in Relation to their Own Health In Norway, Akershus University Hospital established a youth council in 2012. The council acts as an advisory and consultative body to the hospital in its work towards developing good services for adolescents. Among the council’s cases have been youth-friendly spaces and transition pathways. They also have a goal to share their experiences with other youth. The members of the council are between the age of 12 and 25. The council has attracted a lot of national attention and shared its experiences with different actors, such as the Ombudsman for children and other hospitals that aim to establish councils of their own.

4.3

Children’s Participation in the Assessment and Improvement of Health-Care Services Children have distinct life settings, all of which should contribute to their wellbeing. Therefore, each setting has a clear role and importance in children’s lives, and the health sector is no different. For this reason, it is important that children have a say about whether services are meeting their needs and respecting their rights. In South Africa, a group of 13 children aged 7 to 15 participated in the development of a training curriculum of children’s rights for health professionals. Children gave their perception and experiences of health services in South 4.4

53 54 55

53 54 55

Department of Children and Young People Life as a Child and Young Person in Ireland: Report of a National Consultation (2012). Hanafin S & Brooks AM Report on the Development of a National Set of Child Well-Being Indicators in Ireland (2005). Health Behaviour in School-Aged Children (hbsc) Network ‘Terms of Reference’ (2014).

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Africa and how they were helped in drawing up recommendations to enhance their experience of health services – recommendations which informed the curriculum development.56 The International Health Promoting Hospitals Network and who Europe are contributing to enhancing children’s participation in the assessment and improvement of the respect for children’s rights in hospital and primary health care by bringing together different groups of stakeholders, including children of different ages and their parents/families, to assess services provided and identify good practices as well as gaps that should be addressed.57 Assessment of Children’s Effective Participation in the Development, Assessment and Improvement of Health-Care Services Children of all ages have an informed opinion about matters affecting their lives in various settings. The results of the abovementioned programmes show that children are sensitive to the services provided to them and are sensible in both the complaints and suggestions they make. In 2010, Kilkelly coordinated a survey on child-friendly health care on behalf of the Council of Europe in 22 Member States. The children consulted by the Irish Ombudsperson for children ‘said they [children] would welcome having more time with health professionals and considered this additional tie would help them to feel more confident and reassured’ when receiving health care.58 In order for children to participate actively in decision-making, various structures and mechanisms will need to be in place, namely:

4.5

• legal provisions on children’s right to participation; • availability of structures for children’s participation; • awareness of senior management about the importance and benefits of child participation and how to implement it; and • trained professionals working for and with children. 56 57 58

56 57

58

Moses S & Urgoiti G Child Rights Education for Professionals (cred-pro). Pilot of the Children’s Participatory Workshops. Workshop Report (2008). Simonelli F & Guerreiro AIF (eds) The Respect of Children’s Rights in Hospital: An Initiative of the International Network on Health Promoting Hospitals and Health Services. Final Report on the Implementation Process of the Self-Evaluation Model and Tool on the Respect of Children’s Rights in Hospital (2010); Guerreiro AIF (ed) ‘Assessing the respect of children’s rights in hospitals in Kyrgyzstan and Tajikistan. who project: Improving the quality of paediatric care in the first level referral hospitals in selected countries of Central Asia’ (2014). Kilkelly U ‘Child-friendly health care: The views and experiences of children and young people in Council of Europe member states’ msn (2011) 1 E. Council of Europe.

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England’s Office of the Children’s Commissioner published a comprehensive report on the participation of children in health decisions. The findings show that, despite some efforts to improve children’s participation, the current picture of children’s participation in local strategic decision-making is mixed and fragmented. Secondly, the study found gaps related to information about whether and how children are participating. The way children are being involved is also an important finding. The report states: Evidence from past and current practice shows that children typically are invited to take part at a specific stage in the decision-making cycle mainly through consultation. In effect this signifies activity that is simply a ‘sounding out’ of actions or decisions that have already largely been made by adults.59 Importantly, the research also found emerging evidence of children being more actively and fully involved. Children are progressively becoming more engaged in decision-making processes across countries, and the experiences reported show how valuable their contribution can be. Indeed, children provide first-hand insight into how legislation and policies are implemented and what impact they have on the quality of health care delivered and its effect on children’s lives. On the other hand, despite current practices, there is an evident need for further investment. Children’s participation should be an inherent part of any decision-making process affecting children. In line with Treseder’s degrees of participation, there is a need to both facilitate adult-led projects that involve children from the start and engage them in shared decision-making, as well as to create the conditions within societies for children to initiate their own projects and become active members of society. 5 Conclusion Much more has to be done in order to respect, protect and fulfil children’s rights to information and participation in health care. In relation to research needs, two main gaps were identified, namely, the need to better understand how information is shared with children and how decision-making processes take place in health-care facilities; and the need to conduct further research 59

59

Blades R et al., We would like to make a change. Children and young people’s participation in strategic health decision-making (2013).

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with children themselves to understand what their expectations are, how they can best participate in decision-making processes in health-care settings; and how they can become truly active members of society. The intricacies of information and participation are complex. Each stakeholder brings different expectations, personal characteristics and background experiences to the table. In addition, children and adults perceive the world differently and, more often than not, they are not used to sharing decisionmaking. Fulfilling children’s rights to participation, particularly informed consent, is not solely about enacting legislation and translating it into hospital/ health service policies. Children must be informed in such a way that they can understand what is happening to them, in accordance with their evolving capacities. They must also be engaged in decision-making processes, whether or not they have a right to informed consent. Children’s rights are about putting their best interest at the centre of any matter affecting them. In order to do this, it is crucial to give them more worth as members of society; to teach but also learn from them; to tell and ask questions; to listen; and to take into account their opinions. These are essential elements in decision-making processes, and they should be applied in all children’s life settings, including health care. Bibliography Books

Coulter A Engaging Patients in Healthcare (2011) Open University Press. Hart R Children’s Participation: The Theory and Practice of Involving Young Citizens in Community Development and Environmental Care (1997) Earthscan. Hastings AM & Redsell S Listening to Children and Young People in Healthcare Consultations (2010) Radcliffe Publishing. Smith L ‘FNs konvensjon om barnets rettigheter’ in Høstmælingen N, Kjørholt ES & Sandberg K. (red.) Barnekonvensjonen. (2008) Universitetsforlaget Barns rettigheter i Norge (2008) Universitetsforlaget. Spronk S The Right to Health of the Child: An Analytical Exploration of the International Normative Framework (2014) Antwerp: Intersentia. Veerman P The Rights of the Child and the Changing Image of Childhood (1992) Brill.

Journal Articles

Alderson and Montgomery (1996) in Alderson P ‘Competent children? Minors’ consent to health care treatment and research’ (2007) 65 Social Science and Medicine 2272–283.

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Bricher G ‘Children in the hospital: Issues of power and vulnerability’ (2000) 26(3) ­Pediatric Nursing 277–82. Coyne I ‘Children’s participation in consultations and decision-making at health service level: A review of the literature’ (2008) 45 International Journal of Nursing Studies 1682–689. Coyne I & Gallagher P ‘Participation in communication and decision-making: Children and young people’s experiences in a hospital setting’ (2011) 20 Journal of Clinical Nursing 2334–343. Coyne I & Harder M ‘Children’s participation in decision-making: Balancing protection with shared decision-making using a situational perspective’ (2011) 15(4) Journal of Child Health Care 312–19. Coyne I ‘Consultation with children in hospital: children, parents’ and nurses’ perspectives’ (2006) 15 Journal of Clinical Nursing 61–71. Donnelly M & Kilkelly U ‘Child-friendly healthcare: Delivering on the right to be heard’ (2011) 19 Medical Law Review 27–54. Hallström I ‘Parents’ and children’s involvement in decision-making during hospitalisation’ (2004) 9(4) Journal of Research in Nursing 263–69. Kaushik et al., ‘Informed consent in pediatric practice’ (2010) 47 Indian Pediatrics 1039–046. Kilkelly U & Donnelly M ‘Participation in healthcare: The views and experiences of children and young people’ (2011) 19 International Journal of Children’s Rights 107–25. Lambert V, Glacken M & McCarron M ‘“Visible-ness”: The nature of communication for children admitted to a specialist children’s hospital in the Republic of Ireland’ (2008) 17 Journal of Clinical Nursing 3092–102. Lansdown G ‘Implementing children’s rights and health’ (2000) 83 Arch Dis Child 286–88. León Correa F ‘Información y consentimiento informado de menores de edad en Chile’ (2012) 83(2) Rev chil pediatr Livesly J & Long T ‘Children’s experiences as hospital in-patients: Voice, competence and work. Messages for nursing from a critical ethnographic study’ (2013) 50(10) International Journal of Nursing Studies 1292–303. López S et al., ‘Relación médico paciente y consentimiento informado en cirugía pediátrica: teoría y realidad en la práctica local’ (2009) 7(4) Revista Electrónica de las Ciencias Médicas en Cienfuegos 29–36. Mårtenson & Fägerskiöld ‘A review of children’s decision-making competence in health care’ (2007) 17 Journal of Clinical Nursing 3131–141. Runeson I et al., ‘Children’s participation in the decision-making process during hospitalization: An observational study’ (2002) 9(6) Nursing Ethics 583–98. Runeson I, Enskär K, Elander G & Hermerén G ‘Professionals’ perceptions of children’s participation in decision making in healthcare’ (2001) 10 Journal of Clinical Nursing 70–78.

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Strode A, Slack C & Essack Z ‘Child consent in South African law: Implications for researchers, service providers and policy-makers’ (2010) 100 S Afr Med J 247–49.

Legislation

Argentina. National Law 26.529 on patient rights of 2009. Australia (New South Wales) Minors (Property and Contracts) Act of 1970. Australia (South Australia) Consent to Medical Treatment and Palliative Care Act of 1995. Australia (Western Australia) Age of Majority Act of 1972. Canada (Quebec). Civil Code of Quebec, Chapter CCQ 1991, Book One, Title 2, ­Chapter 1, Division 1.14. Chile. National Law 20584 on patient rights of 2012. Denmark. Health Act of 2005. England. Family Law Reform Act of 1969. Georgia. Law of Georgia on Patient Rights No 4722 of May 2007. LHG I, No 18, 22.05.2007, Article 152. Gillick v West Norfolk and Wisbech AHA [1986] AC 112. Mexico. Law on general health of 1984, last revision 2014. Netherlands. Law on Contract for Medical Treatment of 1994. New Zealand. National Code of Health and Disability Services Consumers’ Rights of 1996. Nigeria. A bill for an act to provide and protect the right of the Nigerian child and other related matters of 2003. Norway. National Law on patient’s rights of 1999. Portugal. Directorate General for Health. Norm 015/2013 on informed and free consent for therapeutic or diagnostic acts and participation in clinical research. Republic of Ireland. National Consent Policy, Part Two: Children and Minors. Health Service Executive. Scotland. Age of Legal Capacity Act of 1991. Serbia. Law on Patients Rights of 2013. South Africa. Children’s Act of 2005. Spain. National Law 41 on patient rights of 2002. UK. Family Law Reform Act 1969, Chapter 46, Part I.8

General Comments

Committee on the Rights on the Child, General Comment No. 12 on the right of the child to be heard (2009). Committee on the Rights on the Child, General Comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration (2013). Committee on the Rights on the Child, General Comment No. 15 on children’s right to health (2013).

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Committee on the Rights on the Child, General Comment No. 5 on general measures of implementation of the Convention on the Rights of the Child (2003).

Miscellaneous

Alderson P and Montgomery J Health Care Choices: Making Decisions with Children (1996) London: Institute for Public Policy Research. Barneombudet (2011) Sykehusekspertenes 10 bud. Blades R et al., We would like to make a change. Children and young people’s participation in strategic health decision-making (2013) Office of the Children’s Commissioner. Committee on the Rights of the Child, Consideration of reports submitted by States parties under article 44 of the Convention. Third and Fourth periodic reports of States parties due in 2010. Uzbekistan. 26 January 2012. Council of Europe, Guidelines on child-friendly health care (2011). Coyne I, Hayes E, Gallagher P & Regan G Giving Children a Voice: Investigation of Children’s Experiences of Participation in Consultation and Decision-making in Irish Hospitals (2006) Office of the Minister for Children. Davey et al., Children’s Participation in Decision-making. A Summary Report on Progress Made up to 2010 (2010) London: Participation Works. Department of Children and Young People Life as a Child and Young Person in Ireland: Report of a National Consultation (2012) Dublin: Stationery Office. European Association for Children in Hospital Charter of the European Association for Children in Hospital (1986). Evans K Consent: A Guide for Canadian Physicians 4 ed (2006) The Canadian Medical Protective Association. Gillick v West Norfolk and Wisbech AHA [1986] AC 112 AND Portugal. Health Regulation Authority (2009) Informed consent - final report. Guerreiro AIF (ed) ‘Assessing the respect of children’s rights in hospitals in Kyrgyzstan and Tajikistan. WHO project: Improving the quality of paediatric care in the first level referral hospitals in selected countries of Central Asia’ (2014) WHO Regional Office for Europe. Hanafin S and Brooks AM Report on the Development of a National Set of Child WellBeing Indicators in Ireland (2005) The National Children’s Office Hart R Children’s Participation: From Tokenism to Citizenship (1992) UNICEF Innocenti Research Centre. Health Behaviour in School-Aged Children (HBSC) Network ‘Terms of Reference’ (2014). Health Regulation Authority Informed Consent: Final report (2009) Portugal. Kilkelly U ‘Child-friendly health care: The views and experiences of children and young people in Council of Europe member states’ MSN (2011) 1 E. Council of Europe. Kilkelly U & Savage E Child-Friendly Healthcare: A Report Commissioned by the ­Ombudsman for Children (2013).

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Lansdown G The Evolving Capacities of the Child (2005) Save the Children and UNICEF Innocenti Research Centre. Moses S & Urgoiti G Child Rights Education for Professionals (CRED-PRO). Pilot of the Children’s Participatory Workshops. Workshop Report (2008) Children’s Institute. Santos Pais M in United Nations Manual on Human Rights Reporting under Six Major International Human Rights Instruments (1997) Geneva. Simonelli F & Guerreiro AIF (eds) The Respect of Children’s Rights in Hospital: An Initiative of the International Network on Health Promoting Hospitals and Health Services. Final Report on the Implementation Process of the Self-evaluation Model and Tool on the Respect of Children’s Rights in Hospital (2010) Task force on health promotion for and with children and adolescents in and by hospitals. Treseder P (1997) in Creative Commons Participation Models: A Chase through the Maze 2 ed (2012). World Health Organisation (WHO) ‘Adolescent health policy indicators and law regulations’ (2014).

Part 4 Time for Action: Legislation, Policy Development and Advocacy

∵

chapter 33

Learning from Practice: Safe and Meaningful Child Participatory Child Rights Situation Analysis Methodology in (Post-) Conflict Settings Annabel Trapp1 Abstract A participatory child rights situation analysis (crsa) supports children so that they can identify gaps in the realisation of their rights in a particular location and analyses the reasons why their rights have not been fulfilled. This provides an essential foundation for planning an appropriate (programmatic) response and can ensure that children’s opinions are taken into account. Supporting children’s participation in a crsa in conflict and post-conflict contexts can be challenging and raises many questions: How can children participate safely and in ways that are meaningful to them? How can accountability be openly discussed and shared in fragile settings? How can logistical challenges be overcome? How can findings be shared safely and with whom? How much do the crsa findings influence what happens next in terms of response? War Child Holland has tried to respond to these questions by adapting its methodology to address the complexities of the contexts where it works. This chapter draws on examples of crsas conducted by War Child Holland in the West Bank and Gaza (2011), Sri Lanka (2012) and Syria (2013) to highlight the steps that have been taken to help children safely and meaningfully identify and explore issues of greatest concern to them in these conflict and post-conflict settings. The chapter concludes by presenting key findings and recommendations for supporting children’s participation in crsas in fragile settings.

1 Introduction Millions of children and young people worldwide grow up in areas affected by armed conflict. In conflict and post-conflict situations, the realisation of children’s rights are rarely the priority even though war affects every right of 1

1 Many thanks to Crystal Stewart, Laura Miller, Marina Doris, Jen Connet, and Peter Dixon, for your contribution to War Child’s Child Rights Programming, and making this chapter possible.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_034

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the child. Children’s right to participate in decisions affecting them is often amongst the lowest of concerns. A lack of legal and policy frameworks, the failure of adults to recognise or support children’s right to participate (especially in contexts where adults are denied their own rights), and children’s lack of power and collective voice are all barriers to their being able to influence decisions affecting them. These factors are exacerbated by conflict. War Child Holland (War Child) strives to influence this through its programmes. This chapter demonstrates how War Child seeks to ensure the safe and meaningful participation of children affected by armed conflict using Child Rights Situation Analysis (crsa) methodology. Best practice, challenges and lessons learned from participatory crsas that War Child has undertaken in the West Bank and Gaza (2011), Sri Lanka (2012) and Syria (2014) will be discussed. The chapter concludes with recommendations for supporting children’s participation in volatile settings. 2

War Child

War Child is an independent, impartial non-governmental organisation, funded through a combination of structural private donors, un agencies, foundations and government subsidies. It currently supports children affected by armed conflict in Afghanistan, Burundi, Colombia, Democratic Republic of Congo, Iraq, Lebanon, Occupied Palestinian Territory (opt), South Sudan, Sri Lanka, Sudan, Syria and Uganda. War Child takes a rights-based approach grounded in the un Convention on the Rights of the Child (crc). It implements child protection, education, psychosocial support and participation programmes. War Child’s activities seek to maximise children’s participation in both project activities and in broader decisions affecting their lives in the community, with a particular focus on those children who have previously been excluded from participating in decision-making about matters of concern to them. This demonstrates commitment to prioritising child participation, a right articulated in article 12 of the crc, through offering appropriate support and opportunities. In addition, it has been said that participation also enhances children’s self-esteem and overall capacities, produces better outcomes, strengthens understanding of and commitment to democratic processes, and protects children more effectively.2 2

2 Lansdown G Can You Hear Me? The Right Of Young Children To Participate In Decisions Affecting Them (2005).

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In all its activities with children, War Child complies with War Child’s Minimum Standards for Meaningful Participation3 to guarantee that children’s participation is both safe and meaningful. The extent to which children participate in activities can vary depending on the ability to adhere to these standards. War Child uses the following scale to identify different levels of participation: • Inform: children are told how the project is progressing and about the results. • Consult: children are asked to express their views to inform decisions. • Assist: children are given opportunities to take an active role in an adult-led project. • Partnership: children work as equals in collaboration with adults. • Lead: children lead the action that is taken, with support and advice provided by adults. Supporting children to participate safely and meaningfully in decision-making processes in fragile contexts can present challenges. In politically insecure locations, for example, the public’s power to influence can be very limited, and is often dangerous. However, participation is a right for every child in every context. War Child seeks to prioritise this but takes every measure – including frequently conducting risk and context analyses – to ensure that children are not at risk of harm as a result of their participation in a War Child programme. The level of participation varies depending on the security of the context. 3

Child Rights Situation Analysis

A crsa examines the extent to which children’s rights are being realised in a community. It looks in detail at: • the incidence of violations of children’s rights and how this influences different groups of children; • the causes of these rights violations; and • the extent to which adults fulfil their obligations towards children. 3

3 Adhering to international standards, War Child Holland’s Minimum Standards for Meaningful Participation (2013) require that participation is transparent and informative; voluntary; respectful; relevant; child-friendly; inclusive; supported by training; safe and sensitive to risk; and accountable.

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crsas should draw on a review of existing secondary data/desk-based research as well as primary data collected from consultations with community members. They can be conducted by adults or children, or a combination of both. No two crsa processes will be the same – each process varies depending on the age and ability of the participants, and the context. A crsa is an essential component in the process of planning a rights-based programmatic response to ensure that interventions best address the greatest issues of concern to children and the realisation of their rights as well as tackling the root causes of these issues. Using the crc as a point of reference, the process of consulting with children and analysing the performance of the state and other key stakeholders as a way of informing programming to improve the lives of children began in the 1990s with organisations such as Save the Children making the crc an important part of their modus operandi.4 Building on experience and good practice, specific methodological guidelines for conducting what became known as a crsa in emergency settings were published in 2009 by Action for the Rights of Children (arc).5 Agencies have gone on to adapt and develop methodologies that are most appropriate for the contexts where they work.6 A programmatic approach that supports children in claiming their rights and helps duty-bearers meet their obligations is known as child rights programming (crp).7 A crsa plays a key role in crp by identifying the problems facing children to enable planning of an appropriate programmatic response. 3.1 War Child crsa Methodology Formalising commitment to crp in 2009, War Child began to conduct crsas in the fragile contexts where it works. Initially, these began as desk-based exercises conducted solely by War Child staff. However, building on experience in supporting children’s participation and wanting to better understand children’s diverse experiences, War Child began to prioritise supporting children, including the most marginalised, to identify and analyse gaps in the realisation of their rights. This supports research about children’s participation in 4 5 6 7

4 Save the Children uk Child Rights Programming: A Resource for Planning (2003). 5 Action for the Rights of Children (arc) arc Resource Pack (2009). arc (http://www.arc-online .org) is an inter-agency collaboration between irc, Save the Children, Terre des Hommes, unhcr, unicef and the United Nations Human Rights Office for the High Commissioner. 6 For example, unicef Guidance on Conducting a Situation Analysis of Children’s and Women’s Rights: Taking a Rights-Based, Equity-Focused Approach to Situation Analysis (2012). 7 International Save the Children Alliance Getting it Right for Children: A Practitioners’ Guide to Child Rights Programming (2007) 4.

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d­ evelopment programming which concluded that participatory partnerships with children support more informed and sustainable programming outcomes.8 Although participatory crsa methodology is well established, it was a new methodology for War Child. Learning from past experience, War Child made several adaptions to ensure that it is safe and meaningful within fragile contexts. Each participatory War Child crsa begins in a workshop setting. The first step is always to ensure that children have a thorough understanding of child rights. Participants are then supported to identify the greatest issues of concern to them, categorise these issues in order of priority, and then go on to analyse them in more detail. Seeking to constantly strengthen this process, War Child adapts existing9 and develops new creative methodologies selected on the basis of the ages and capacities of the participants. This chapter provides examples of some of these tools that are appropriate for 12- to 17-yearolds. Once risk assessments have been conducted and War Child, its partner staff, and child participants are confident that the security situation permits it, children are often supported to return to their communities and investigate their priority issues in more detail with other key stakeholders. Where possible, children are then supported to share their research findings with members of the community. Specific criteria are used to select child participants. As a minimum, they are required to be a participant in a programme supported by War Child Holland; they must be willing and available to participate; and permission must be granted from their parents or caregivers.10 Their participation in a crsa should not be an isolated experience but the beginning of their involvement in War Child programming, if they are not already a participant. Partner organisations play a key role facilitating, supporting and guiding the child participants throughout the crsa process. Adult-led desk research, conducted by War Child staff, accompanies the primary research conducted by children in order to explore particular issues that may be known to be prevalent but not raised or analysed further by children due to their sensitivity. Familiarity with the contexts in which War Child works allows for an awareness of issues which are often excluded from public discussion due to cultural sensitivity. Desk-based research aims to ensure that such

8 9 10

8 9 10

Cook P, Blanchet-Cohen N & Hart S Children as Partners: Child Participation Promoting Social Change (2004). Existing methodologies include arc’s participation tools, found in Module 4, arc Resource Pack (2009). Selection criteria for child participants are explained in Example Tool 1, page 4.

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issues are not neglected in the analysis or excluded for consideration in future programming. Now a requirement in every context where War Child works, an up-to-date crsa informs War Child’s strategic direction and influences programmatic choices, including strategic advocacy interventions. 4

War Child crsa, opt, 2011

4.1 Context As a result of more than 60 years of conflict, the Israeli occupation of the West Bank, including East Jerusalem, the blockade against Gaza, the limited status and capacity of the Palestinian Authority and the internal conflict between Palestinian political parties, Hamas and Fatah, children throughout the ­Occupied Palestinian Territories (opt) have been deprived of their basic right to live in a safe environment. War Child has been working with partners in opt since 2005. 4.2 Methodology War Child began a child-led crsa in the West Bank and Gaza in July 2011. Initial risk and conflict assessments conducted by War Child staff confirmed that it was possible to safely support children to lead this process and carry out their own research about what is happening in the places where they live. This crsa aimed to empower children to identify and document child rights experiences in their lives and communities through capturing video footage and conducting interviews with other children and key adult stakeholders. The purpose was to provide children with the opportunity to express themselves in their communities and to inform the War Child programmatic decision-making process in opt. Participating national partner organisations played a key role in designing the project, determining target locations, selecting participants and establishing child safety protocols. After the project objectives and parameters were clearly defined, the partners received appropriate training to safely facilitate the project and support participants for its duration.

Example Tool 1:

Participant selection

In this exercise, participants (usually adults) select which children will p ­ articipate in the project.

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The roles of the child participants are written for all to see, and discussed. The adult facilitators brainstorm criteria for the selection of child participants, recording their answers and discussing the importance of each criterion, ensuring that no other important selection standards have been left out. Adult facilitators then brainstorm and document how to make the selection process transparent. They are encouraged to ensure a balance in gender and age, and include marginalised children (for example, ensuring diversity in terms of religion; rural versus urban place of residence; socioeconomic background; in or out of school; ethnic background; disabled and/or other discriminated against groups, and so on). Other important selection criteria include: children who are interested in the project and have time to participate; children who may be already actively involved in community activities; and children who represent a broader group of children, for example, a member of a Child Rights Club.

Example Tool 2: Identifying issues of concern: Timeline of a child’s life11 This exercise recognises children as social actors in their everyday lives and understands how their roles and responsibilities may change in a fragile setting. Before the workshop, a model timeline of a child’s life is prepared on flipchart paper and hung on the wall. In plenary, the facilitator asks questions relating to the example. Questions might include: ‘Why do you think this child chose these events to put on his or her timeline? What do you think the child would like to speak out on about his or her life? Is there an event in his or her timeline that you would also like to speak out about?’ Participants are divided into small groups and asked to try to consider the experience of a marginalised child in their community. This might be someone they know, or an imaginary child. Participants are then asked to reflect on the important events that might have happened in this child’s life. Each group is given a piece of flip-chart paper and asked to write down these important events that occurred (they can think of an important event that might have 11

11

Adapted from ‘Timeline of a Day in a Child’s Life’, Module 4, Exercise 5, arc Resource Pack (2009).

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happened each year, if that helps). An important event is something the child thinks about often; something that influenced who they are or what they think about the future; something that makes them happy or sad; or something that involves their family, friends or community. In plenary, participants present their timelines, describing the roles and responsibilities taken on by children; the skills and competencies they demonstrate; and any changes in roles and responsibilities as a result of the conflict.

Example Tool 3: Identifying issues of concern: Community mapping12 This exercise supports participants to identify risks within their community. Working in the same small groups, participants are asked to draw a map of their community (each group produces one map). The facilitator reminds them to mark important landmarks such as roads, rivers or lakes, schools, hospitals, stores, mosques, churches and so on, as well as where they and their friends live, and the places they visit frequently. Participants are then asked to use a different colour to mark the safe areas in their communities – places, people or objects that make them feel happy and comfortable. The facilitator asks cue questions such as: Where do you play? Where do you meet your friends? Where do you like to go the most in your community? With another colour marker, participants then locate the unsafe areas – places, people or things that make them feel unhappy or uncomfortable, places where they feel in danger, places they feel they might be at risk of some type of harm. Questions to stimulate a detailed response might include: What places do you avoid? Where do you feel uncomfortable alone? Where are places you can’t go without your parents? Are there places where you feel you might be at risk of harm? In plenary, each group presents and discusses their community maps.

12

12

Adapted from ‘Risk Mapping’, Module 4, Exercise 2, arc Resource Pack (2009).

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Example Tool 4: Identifying issues of concern: Mapping child rights violations In this exercise, participants record issues of concern in their community. Each group receives a package of Post-it notes. They are asked to reflect on the activities during the day. These might have included a child rights discussion, life timelines and a community-mapping exercise. The facilitator asks them to write all of the issues they would like to speak out about in their community. They are asked to write each issue on a separate Post-it note and stick it on the community map. In plenary, the group discusses the issues that have been raised. The facilitator then explains how these activities will feed into the crsa project.

Children were properly informed and prepared before participating in the crsa. This included acquiring full parental and child consent before attending any of the project activities. Facilitators from the partner organisations were trained on child safety and participation. They gave child participants and their parents a detailed explanation of the project and explained the role of the child as a researcher in this crsa. With this information, the children were able to make their own decisions about whether they wanted to participate. Children received no incentive for participating. Any expenses incurred during the crsa are covered by War Child. To start the project, 22 children in the West Bank and 35 in Gaza, aged between 13 to 17, were invited to two-day workshops that prepared them to carry out research in their communities. On the first day, they were given an introduction to the crsa project, received training on child rights, participated in team-building exercises, reflected on their lives, mapped their communities, and identified issues of concern in the communities where they live. On the second day of the opening crsa workshops, the children in opt strengthened their child rights knowledge, determined which topics they wanted to speak out on, discussed different methods to capture the situation of children in their communities, and were introduced to child-safety standards. They were also trained to use small video cameras and voice recorders to document the topics they had prioritised, and prepared questions for the interviews they went on to conduct with other children, young people, community leaders, teachers, doctors and government officials.

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4.3 Issues Children Identified The following table identifies the main issues that children in each group prioritised: Table 33.1 Tool developed by author

Children in the West Bank

Children in Gaza

Education Child labour Lack of safe spaces to play Discrimination against children with disabilities Adult unemployment Settler violence

Education Child labour Lack of safe spaces to play Lack of freedom of expression Restricted movement Insufficient health care Rubbish and sewage Insufficient access to sports for girls Fear relating to the conflict

Investigating Further 4.4 Participants then returned to their communities where they filmed and ­conducted 156 interviews with other children, family members, community leaders, teachers, and government officials about the issues which they had prioritised. They were given approximately two weeks to gather the information they wanted to present about the places they lived. To document their findings, participants selected interviews to include in the documentaries that they made. These can be seen on YouTube.13 The final stage of the crsa was an opportunity for the participants to showcase their work to a ­public audience. It provided them with a platform to express their views and opinions about the areas they live in and the issues they had prioritised. They were able to discuss what they learned during the project and give recommendations on what could be done to solve some of the issues identified by their research. While children were conducting their own primary research, desk research was also conducted by War Child staff. Overall, the video documentaries ­corroborated the body of literature and research produced by un agencies and 13

13

The documentaries made by the War Child child-led opt crsa (2011) can be found at the following YouTube sites: Gaza: https://www.youtube.com/watch?v=rPFxg-84pKY; West Bank: https://www.youtube.com/watch?v=kqO2jYebxIo.

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international and national organisations documenting the situation of children in the West Bank and Gaza. A final crsa report was produced combining both the findings from children from the primary research and the desk review conducted by War Child. 4.5 Best Practice Child Safety Child safety procedures were established to keep children safe during this project. This entailed a list of requirements including but not limited to: not filming or recording anyone who does not want to be filmed or recorded; not filming or recording anything that might be dangerous to film; contacting the facilitator immediately if any participant had a question; and following their schedule and communicating with their facilitator regularly. Each child participant carried an identity badge with the organisation’s contact information; was provided with a communication budget to allow him or her to communicate with other participants in case of emergency; and created a schedule with the facilitator so that facilitators either accompanied the team or were aware of children’s whereabouts at all times. Before conducting interviews, children and adults needed to sign a permission slip. Hearing Children’s Voices: Invaluable Evidence This was the first War Child crsa where children led the process. While War Child was already aware of many of the issues children raised in this project, less was known about their impact on children. This crsa led to a much deeper understanding of children’s experiences, which directly contributed to strengthening War Child’s programming in this context. As a result, War ChildOPT’s Country Strategy (2012–2016) was developed with this first-hand input from children. The rich evidence provided in this crsa also assisted in accessing funding to address some issues that had not yet been included in War Child’s programming portfolio, such as child labour and safe spaces to play. 4.6 Challenges and Lessons Learned Issue Sensitivity In the initial workshop, children identified some child rights violations that were deemed too sensitive to discuss and explore within the community. For example, sexual abuse and domestic violence were particularly prevalent issues in Gaza, while the arrest and detention of children was strongly identified by children living in East Jerusalem. With appropriate facilitation, and additional time, it may have been possible for child participants to analyse these issues in more detail within a closed setting. However, the main aim of this crsa project was to support children to explore issues of concern in more detail

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within their communities. Child participants, War Child staff and its partners unanimously agreed that children would have been placed in ­potential danger if they had filmed or conducted public interviews on these issues. As a result, it was decided that such sensitive issues would not be further explored within this project. However, these issues were documented in the desk analysis and later included in War Child’s programming where scope and capacity allowed. Limited Inclusion This crsa only reached the geographic working areas of War Child’s partners. While partners were encouraged to be very inclusive in their selection of participants, it was still a challenge to ensure that the different experiences faced by different children were included in this analysis. Partners had a tendency to select the most able participants, which meant that the voices of the less able and most vulnerable children may have been missed. 5 Child-Led crsa, Sri Lanka, 2012 5.1 Context Political changes that took place in Sri Lanka since independence in 1948 exacerbated existing ethnic rivalries, culminating in civil war between 1983 and 2009 in which Sri Lankan government forces and the ltte (Tamil Tigers) engaged in armed conflict in the island’s north and east, killing tens of thousands of people. This 26-year-long conflict caused significant hardships for the country’s population, environment and economy. At the end of 2011, at least 125,000 Sri Lankans remained internally displaced.14 This same area was also further affected by the tsunami in 2004 which killed more than 30,00015 and in which over 4,000 disappeared.16 Deep divisions and inequalities persist between cultural, religious and ethnic groups. Gender inequality and violence against women and children are widely reported. Despite ratification of many key international human rights treaties, including the crc in 1991, Sri Lanka continues to receive criticism from several human rights groups for not fulfilling many of its international human rights obligations.17 War Child began working through partners in Sri Lanka in 2010. 14 15 16 17

14 15 16 17

Internal Displacement Monitoring Centre Sri Lanka: idps and returnees remain in need of protection and assistance (2011). bbc News ‘us presidents in tsunami aid plea’ 3 January 2005. Wikipedia ‘Countries affected by the 2004 Indian Ocean earthquake and tsunami’. See, for example, Amnesty International ‘The Human Rights Situation in Sri Lanka: A Statement for the Human Rights Council Session’ (June 2012).

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5.2 Methodology In July 2012, War Child began the process of updating its three-year country strategy for its programme in Sri Lanka. The first step was to conduct a crsa. Learning from the child-led War Child crsa that took place in opt in 2011, efforts were made to widen the geographic scope of this crsa. War Child ­collaborated with national partners to support children aged between 14 and 17, with young people aged 18 to 19 also participating. Participants lived in the conflict-affected Northern, Northern Central and Eastern provinces, as well as Uva and the southern provinces of the country. This crsa involved ­diverse groups of children from the districts of Jaffna, Killinochchi, Mullaitivu, V ­ avuniya (Northern Province), Padaviya (Northern Central Province), Batticaloa (Eastern Province), Matara and Galle (Southern Province) and Moneragala (Uva Province). The participation of marginalised children was prioritised, including children with learning difficulties, non-school-attending children, children temporarily residing in a safe house, and internally displaced children, including children from border villages (North Central Province). Gender equality was maintained in each of the groups participating in the project. The criteria for the selection of child participants were similar to the requirements used in the opt crsa. Opening crsa workshops took place in Batticaloa, attended by a minimum of two (one male, one female) child participants from each district and the partner staff supporting them. Partner staff received initial training on the crsa project and their role in it. Child participants took part in workshops with others from the same or a nearby province. In these initial workshops, they used participatory methodology similar to the crsa in opt to discuss child rights, learn about the crsa project, identify key issues in their own communities, and prioritise issues which they wanted to find out more about with other stakeholders. 5.3 Issues Children Identified The issues that participants in each geographic division identified and prioritised for further research with other stakeholders are marked with a cross in Table 33.2 below. The denial of access to education – including school drop-out – was prioritised as the issue of most concern by children in almost all districts in this analysis, and the one that many children wanted (or felt able to) explore further. This issue recurred through the consultations, illustrating the importance children from all participating provinces place on education. However, many more child rights violations were identified before prioritisation took place. In the majority of cases, participants found it difficult to distinguish between the severity of violations. The correlations and connections

Incomplete education (incl. school drop-out) Lack of child protection Child Labour Early marriage Use of drugs/ alcohol Lack of parental care/ neglect Discrimination (race/religion) Lack of awareness of health Psychosocial distress Misuse of mobile phones

District Issue

Province

X

X

X

X

X

Galle Matara

Southern

X

X

X

Mullaitivu

Table 33.2 Issues of concern, by geographical region

X

X

X

X

X

X

X

X

X

Jaffna Vavuniya Kilinochchi

Northern

X

X X

Padiviya

N. Central.

X

X

X

X

Kiran Vahai

X

Valachinai

Batticaloa

Eastern

X X X

Safehouse

X X

X

X

X

X

Buthala M

Moneragala

Uva

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between violations emphasised the interdependence of child rights. For example, the use of drugs and alcohol in the home, family violence, child labour, and denied access to education due to school drop-out are all closely related (for example, in Monaragala District). It was possible to support each group to prioritise issues of concern with appropriate exercises.

Example Tool 5:

Issue prioritisation: Diamond ranking18

This exercise supports participants to prioritise issues they have identified. Working in the same groups that have identified issues of concern, participants are asked to write each issue on a separate card or Post-it. The facilitator shows them a diamond shape already prepared on flip-chart paper. Participants are asked to make their own diamond shape by placing the issue that they think is most important at the top, the least important at the bottom, and the others in between in order of importance. In plenary, participants share their diamond ranking with the group and discuss the reasons for their chosen priorities.

Once issues were prioritised, participants identified how they would like to further investigate them. The project’s implications for their own safety and that of others were the key determining factor in making this decision. Exercises were conducted with children during the initial workshops to explore the potential risks of the crsa and thereby ensure that children did not select methods that would put them at risk of harm in their community. While all groups discussed their priority issues with others in their communities, it was agreed that filming would not be safe in some areas. 5.4 Investigating Further Participants then returned to their communities to work with their peers to find out more from other stakeholders about the priority issues they had identified. Stakeholders included other children and young people, community leaders, child rights club officers, teachers, medical personnel, religious leaders, parents, students and undergraduates, prison authorities, officials of rehabilitation centres, Sri Lanka army commanders and government officials including District Secretaries. Participants always obtained consent from each interviewee before beginning to discuss issues with them. Project facilitators 18

18

Adapted from ‘Diamond Ranking’, Module 4, Exercise 7, arc Resource Pack (2009).

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supported participants at every stage of this process. In total, 1,338 interviews were conducted during this crsa. Children selected a variety of creative methods to document and communicate their crsa findings with others. These included film, song, drama ­performances and pictures. More than 800 children and young people contributed to this analysis. Once the documentation stage was completed, partners ­supported the participants to speak out on the issues of concern to them in the communities where they live, including in crc Monitoring Committee meetings. These events were well-attended by a wide range of stakeholders. 5.5 Best Practice Positive Outcomes for Children While the conflict and situation in Sri Lanka has been well-documented and positive efforts have been made to support children’s participation, this was the first ever child-led crsa conducted in Sri Lanka. It has had significant outcomes for children in several districts considered in this crsa, emphasising the value of supporting children to speak out on issues of concern to them in their community. In Batticaloa, for example, children developed and performed street musical performances on alcoholism. The Divisional Secretary was so impressed with the performance that she asked for it to be performed on International Children’s Day, and also provided a children’s mobile theatre to tour the province to raise awareness to more members in the wider community. Department of Education staff now make regular visits to remote areas in Eastern Province, where access to education is most threatened. In each division of Batticaloa, Action Teams now visit the homes of children and young people who had dropped out of school, support them to return to school, and conduct regular follow-ups with each child. After successful lobbying using the information collected in the crsa, District Committee members in Batticaloa also provided school kits for 58 students who were in need of support to continue their schooling; resource centres in Batticaloa have been renovated to better support children; the Divisional Secretariat has led an awareness programme on child labour and other child rights violations; and regular crsa follow-up meetings have been conducted at divisional level. Foundation for Advocacy The priority issues identified by children in this crsa laid the foundation to support them to make changes to better fulfil their rights in a subsequent childled strategic advocacy project. This project, which aims to address the lack of robust and active mechanisms to monitor child rights violations by s­ upporting

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children to influence government action, was made possible by funding secured using evidence from children collected in this crsa. 5.6 Challenges and Lessons Learned Issue Sensitivity Particularly sensitive issues, such as abuse of girls, discrimination, corporal punishment, and child trafficking, were identified by several groups, ­particularly by participants from the Northern and Eastern Provinces. Child participants were the first to identify that these issues would not be safe to investigate further within the community, and they did not want to further discuss these issues in the workshop. It was not possible to confirm whether the identification of education as a priority issue by the majority of participants masked discussion around these more sensitive issues. Time constraints within the initial workshop may have prevented sufficient exploration, or perhaps participants might not have felt enough trust in the facilitators. Challenges Discussing Accountability Openly discussing accountability was one of the biggest challenges in this project. The political sensitivities in Sri Lanka restricted the extent to which the direct cause of violations could be attributed to others, or discussed openly. It was not safe for participants, or supporting organisations, to allow this. This was anticipated at the outset of the project. Despite the limitation, the fact that, as a result of their participation in this crsa, children were able to raise awareness about issues of importance to them at local level, and stimulate debate and positive action by others without any negative safety implications, emphasises the value of conducting a participatory crsa when conducted appropriately. 6

War Child crsa, Syria, 2014

6.1 Context Humanitarian needs in Syria have increased significantly since the beginning of the crisis in 2011. At the time of writing, the conflict had resulted in the deaths of more than 100,000 men, women and children,19 and the displacement of up to six million. Over 6,500 children have been killed and many more injured.20 19 20

19 20

un News Centre ‘un chief, United States Secretary of State, urge political solution to Syrian crisis’ 25 July 2013. Price M et al., Updated Statistical Analysis of Documentation of Killings in the Syrian Arab Republic (2013).

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Many children have been separated from their families, displaced from their homes and are showing signs of emotional distress. There are now 12.21 million in need of humanitarian assistance, including more than 5.6 million children, and 7.6 million internally displaced people.21 An estimated 4.8 million people are in need of humanitarian assistance in hard-to-reach locations.22 Since April 2012 War Child has been responding to the humanitarian consequences of Syria’s armed conflict by providing education and life-skills support to children through local partner organisations. 6.2 Syria 2013: Methodology Some situations are too dangerous for children to research issues within their community. Contexts of intense and unpredictable fighting present a paradox to supporting children’s participation. Children have a right to participate in decisions affecting them – they are the experts on their own experiences and provide an insight which cannot be provided by others. However, any organisation supporting children must ensure that children’s safety and protection is not put at risk as a result of their participation. The increase in violence and insecurity experienced by children in Syria in 2013 presented a clear need to conduct a crsa to analyse changes in children’s experiences. War Child wanted to use appropriate methodology to support a safe crsa to inform a programmatic and humanitarian response. In order to listen to children’s views, War Child adapted the extent to which children participated in this crsa to ensure that children were not placed at additional risk. While children were consulted in this analysis, independent researchers recruited from community-based humanitarian organisations led the process with appropriate training. Due to the situation in Syria at this time, researchers were informed that this crsa was not intended to place responsibility on any particular actor or group for a particular violation. The research conducted for this crsa was limited to safe indoor workshop settings. Participatory information-gathering tools, as implemented in the crsa opt (2011) and crsa Sri Lanka (2012), were used to encourage children to identify, analyse and discuss the issues most affecting them. Focus Group discussions were also used to analyse issues in more detail. 21 22

21 22

un Office for the Coordination of Humanitarian Affairs (ocha) 2015 Strategic Response Plan: Syrian Arab Republic (December 2014). un Office for the Coordination of Humanitarian Affairs (ocha) 2015 Strategic Response Plan: Syrian Arab Republic (December 2014).

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Example Tool 6:

Analysing priority issues: Body mapping23

This exercise supports children to explore how the priority issue that they have identified affects their lives, their experiences, views and feelings. Working in the same small groups, participants stick three sheets of flip-chart paper together. A volunteer in each group lies on the paper to have his or her body shape drawn in outline to create a large body-map person. If p ­ articipants are not comfortable doing this, the facilitator can draw the outline of a body on the paper. Participants are then asked to write their gender, age and background on the paper. They can also give their ‘child’ a name, if they wish. The facilitator asks participants to recall the issue of concern that they earlier identified as most important. Responding to the facilitator’s questions, participants discuss, write down, and analyse their views regarding the issue they have identified and how it affects their lives, in relation to different areas of the body map. The facilitators’ questions include:

• Head: How does this issue positively or negatively affect the minds of chil• • • • • • •

dren, the way children think, and/or children’s learning? Eyes: What have children seen with their eyes? Have children witnessed this issue taking place? Ears: What have children heard? What have children heard others saying about this issue? Mouth: How has this issue affected the way people communicate with each other and the way adults communicate with children and young people and/or the way children and young people communicate with one another? Main body: How has the issue affected children’s health and their protection from different forms of abuse or exploitation? Heart: How has this issue affected children’s own feelings and people’s feelings towards them? Who do children get support from in times of need? Arms and hands: As a result of this issue, what kinds of activities are children more or less involved in? Legs and feet: Are there any changes in the places where children and young people do or do not, or can or cannot go? For example, for work, study or income generation? What do children do now?

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Adapted from ‘Body Mapping’, Module 4, Exercise 3, arc Resource Pack (2009).

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Each group is invited to share their body map with the group. What are the participants’ views about the various impacts of the issue that they have identified? What are the most negative impacts? What are the most positive impacts? If participants agree, they can take a photograph of each body map as a way of recording the consultation. This tool can be adapted as required. For example, it can also be used to plan how to find out more about the issue they have prioritised. The ears might identify whose views children want to listen to; the feet can identify the places where children will need to go; the hands can identify how children want to record their findings, and so on. To enable the views and experiences of girls and boys of different ages and backgrounds to be heard, it is best to facilitate the body map exercise separately with children grouped by:

• age range: for example, six to 10 years, 11 to 14 years, 15 to 18 years; and • background: for example, separate groups of schoolgoing children or working children.

Example Tool 7: Analysing priority issues: Problem-tree analysis24 In this exercise, participants use a ‘problem tree’ to explore the root causes and the impact of any identified problem. The facilitator draws a tree on flip-chart paper, with the roots reaching underground and branches reaching up to the sky. This image is introduced as a simple tool to identify and explore the root causes and impact of an identified issue or problem. The roots represent the root causes; the branches represent the impact of the problem on children, families, communities and society at large. Working in the same groups as in the previous exercises, participants are asked to draw their own problem tree and, in the trunk of the tree, write the issue of most concern which they identified earlier. Participants are then asked

24

24

Adapted from ‘Problem Tree Analysis’, Module 4, Exercise 5, arc Resource Pack (2009).

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to consider the causes of this problem and to record their answers alongside the roots. For each of the causes recorded, participants are encouraged to ask ‘Why?’ again. To ensure that smaller roots are also added, the facilitator needs to keep asking why of every response. This helps identify the root causes of a problem. The next step is to consider the impact of their problem on children, families, communities and society and record their answers alongside the branches. The facilitator should then facilitate a discussion about each problem-tree analysis and encourage participants to add any further points that they would like to make. In plenary, each group is encouraged to share their problem trees and discuss them with the group. The facilitator emphasises that this kind of analysis is an important part of a crsa.

The data for this crsa were collected in Syria between August and October 2013 by a team of 26 independent researchers (15 women and 11 men). Researchers worked in teams of two, with one person leading each activity with a group of six to ten children at a time and one person taking notes. Knowing in advance that accountability could not be openly discussed, children were not asked for information about responsibilities for violations. A total of 391 children (boys and girls between the age of 10 and 17) in 13 different communities in Syria contributed to this analysis. 6.3 Issues Children Identified Violations of their rights to protection, education, health care, nutrition and play were the issues most frequently identified. Fear was commonly reported by children as a factor restricting the fulfillment of their rights and their ability to enjoy their childhood. The children also voiced their perception of widespread discrimination in access to resources and services in Syria. The voices of children on these issues are captured in a full report which recommends that programmes for Syrian children better address their needs by ensuring the creation of safe places for them to gather and that they can access support services on a fair and equal basis.25 It also recommends that partnerships and cooperation with existing community-based groups and structures are prioritised, and that children from the host and displaced community, as well as Syrian and refugee children, are integrated and involved. 25

25

War Child Holland Syria Child Rights Situation Analysis (January 2014).

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6.4 Best Practice Awareness-Raising At the time, War Child’s crsa was the only thorough report informed by primary research with children inside Syria. It has been disseminated by local partners and has contributed to awareness-raising campaigns on the concerns and risks raised in the report, targeting children, parents and shelter staff. It is also reported to have influenced the programmatic response of other ingos and ngos working in Syria. Internationally, it has raised awareness about the situation for children in Syria among humanitarian agencies, donors and other key international stakeholders.26 War Child continues to be approached by un agencies interested in discussing the findings of the report and who have ­reported that the detailed information and analysis in the report was unique and valuable for their own work. Capacity-Building The adults involved in the crsa in Syria continue to use and implement the exercises from the crsa with children. The process became a very interactive and important exercise for them to learn more about implementing a rightsbased approach and raising awareness of child rights through their own activities. All the partners reported that they had gained new perspectives on the situation of children and discovered children’s concerns that they had not realised or understood before. 6.5 Challenges and Lessons Learned Parental Consent Some parents did not want their children to participate in this project because they did not feel comfortable giving parental consent in writing. To address this, parents gave verbal consent which the researcher signed on their behalf. This limitation may have prohibited particularly marginalised children from participating, as well as orphaned or unaccompanied children without a parent or caregiver. Restrictions on Access Restrictions on physical access placed significant limitations on this crsa. The training of the researchers was hosted in Lebanon, which meant that some researchers were unable to attend and areas far from Beirut (Aleppo and all of Northern and Eastern Syria) could not be included. Only ten researchers

26

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unicef Under Siege: The Devastating Impact on Children of Three Years of Conflict in Syria (2014) 11; Strategic Needs Analysis Project (snap) Regional Analysis Syria: Part i – Syria (4 April 2014) 16.

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(outof 26) could return to Beirut to attend the data interpretation workshop. As a result of access constraints, the sensitivity of the topics, and the security challenges in working confidentially and safely with children, this crsa was conducted through a trusted network of humanitarian organisations. Therefore, children and communities that could not be reached through this network were not included. 7 Conclusion While crsa methodology has been internationally recognised and used by others, crsas are less often conducted in situations affected by armed conflict. War Child has made adaptations to established methodology to try to ensure that children’s voices are not lost in these settings. crsas have significantly influenced the choices made in the selection of War Child’s programming interventions, ensuring that the organisation responds as closely as possible to children’s greatest concerns. However, despite strong progress in building experience in this area within the organisation, there remain challenges in supporting participatory crsas in fragile contexts. Discussing accountability is a key component of a strong crsa. However, in situations affected by armed conflict, War Child has found that although the causes of rights violations and the extent to which adults fulfil their obligations towards children can be discussed in consultations with children in a workshop setting, it is not always safe for children to lead the research process by openly exploring accountability through discussions with stakeholders in the community. Where this is the case, War Child often responds through advocacy programming to the structural causes of issues children have raised. Where it is not safe or appropriate for children to participate in such interventions, their voices will inform actions led by adults at national or international level. Ensuring the meaningful participation of marginalised children, as discussed in Section 2 above, and avoiding tokenistic inclusion remains a challenge. This includes ensuring that the crsa process reaches out to children usually excluded from analysis. A related barrier has been securing consent from parents or caregivers in war-affected contexts. Further research and experience are required to better understand whether particularly sensitive issues can be explored within a participatory crsa and how this could be conducted. Although in some contexts children have identified sensitive issues in a closed workshop setting, War Child’s experience demonstrates that the participants’ safety would be placed at significant risk if they were to lead research on such issues in a public setting.

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Despite these challenges, War Child has learned that aspects of a safe and meaningful crsa can be undertaken in conflict settings, providing that: • • • •

children are willing and able to participate; consent is received from parents or caregivers for each participating child; staff capacity is in place and ongoing support is provided; risk assessments and conflict analyses are conducted, and responded to, throughout the process; • there is a safe and accessible workshop location; • methodologies are flexible enough for adaptations to be made at any time; and • the crsa is the first step in a longer-term programme with children. Feedback from children in all War Child crsas has confirmed that children very much enjoy participating in a crsa and value the opportunity to discuss issues affecting them with others. This chapter has demonstrated that participatory crsas can inform and influence programmatic, humanitarian and community responses to children, resulting in positive outcomes for children living in (post-)conflict settings. If the context allows it, children can lead a research process and publicly discuss their findings within the community. This enables them to play a key role in raising awareness about their situation and challenging others to prioritise child rights, even in insecure locations. Bibliography Books

International Save the Children Alliance Getting it Right for Children: A Practitioners’ Guide to Child Rights Programming (2007) London: Save the Children UK. Lansdown G Can You Hear Me? The Right Of Young Children To Participate In Decisions Affecting Them (2005) The Netherlands: Bernard van Leer Foundation.

Miscellaneous

Action for the Rights of Children (ARC) ARC Resource Pack (2009), available at http:// www.arc-online.org/foundation/programmedesign.html Amnesty International ‘The Human Rights Situation in Sri Lanka: A Statement for the Human Rights Council Session’ (June 2012). BBC News ‘US presidents in tsunami aid plea’ 3 January 2005, available at http://news .bbc.co.uk/2/hi/asia-pacific/4143459.stm (accessed 19 January 2016). Cook P, Blanchet-Cohen N & Hart S Children as Partners: Child Participation Promoting Social Change (2004) International Institute for Child Rights and Development,

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available at http://www.unicef.org/adolescence/cypguide/files/Child-as-Partners .pdf (accessed 15 January 2016). InternalDisplacementMonitoringCentreSriLanka:IDPsandreturneesremaininneedofprotectionandassistance(2011),availableathttp://www.internal-displacement.org/assets/ library/Asia/Sri-Lanka/pdf/Sri-Lanka-January-2011.pdf(accessed15January2016). Price M et al., Updated Statistical Analysis of Documentation of Killings in the Syrian Arab Republic (2013) Commissioned by the Office of the UN High Commissioner for Human Rights (OHCHR), available at https://hrdag.org/wp-content/uploads/ 2013/06/HRDAG-Updated-SY-report.pdf (accessed 15 January 2016). Save the Children UK Child Rights Programming: A Resource for Planning (2003). Strategic Needs Analysis Project (SNAP) Regional Analysis Syria: Part I – Syria (4 April 2014), available at http://www.acaps.org/reports/downloader/part_i_syria _apr_2014/79/syria (accessed 15 January 2016). UN News Centre ‘UN chief, United States Secretary of State, urge political solution to Syrian crisis’ 25 July 2013, available at http://www.un.org/apps/news/story.asp? NewsID=45497#.Vpj5Yfl97IU (accessed 15 January 2016). UN Office for the Coordination of Humanitarian Affairs (OCHA) 2015 Strategic Response Plan: Syrian Arab Republic (December 2014), available at http://reliefweb .int/report/syrian-arab-republic/2015-strategic-response-plan-syrian-arab-republic (accessed 15 January 2016). UNICEF Guidance on Conducting a Situation Analysis of Children’s and Women’s Rights: Taking a Rights-Based, Equity-Focused Approach to Situation Analysis (2012), available at http://unicef.ge/uploads/Rights_based_equity_focused_Situation_Analysis _guidance.pdf (accessed 15 January 2016). UNICEF Under Siege: The Devastating Impact on Children of Three Years of Conflict in Syria (2014), available at http://www.unicef.org/publications/files/Under_Siege _March_2014.pdf (accessed 15 January 2016). War Child Holland Child Rights Situation Analysis: Occupied Palestinian Territories and Israel (December 2011). War Child Holland Minimum Standards for Meaningful Participation (2013), available at https://www.warchildholland.org/sites/default/files/bijlagen/node_7346/22-2015/ minimum_standards_for_child_participation_-_a4.pdf (accessed 15 January 2016). War Child Holland Syria Child Rights Situation Analysis (January 2014), available at http://www.warchildholland.org/sites/default/files/bijlagen/node_14/17-2014/war -child-holland-syria-child-rights-situation-analysis.pdf (accessed 15 January 2016). Wikipedia ‘Countries affected by the 2004 Indian Ocean earthquake and tsunami’, available at https://en.wikipedia.org/wiki/Countries_affected_by_the_2004_Indian _Ocean_earthquake_and_tsunami (accessed 15 January 2016).

chapter 34

To be Heard and Seen: Youth Participation as a Goal and as a Means to Improve Children’s Rights Situations Karin Kloosterboer Abstract This chapter describes the potency of the relatively young crc and the power of the right to participation. It argues that contemporary research into children’s rights situations not only cannot do without the affected children’s input but is considerably enhanced in its impact with children’s participation; indeed, with the proper organisation, children can become a direct part of efforts towards improving these situations. Children’s participation can be a means as well as an end. Two children’s rights studies are presented as examples. The first was performed in Dutch asylum-seeker centres and the second in the Caribbean part of the Kingdom of the Netherlands. The chapter discusses the crc, examines the studies, the children’s participation in them and the follow-up process, and offers some concluding observations.

1 Introduction ‘You are the first person to ever ask us something’ – girl, 11 years old, ­asylum seekers’ centre, the Netherlands. This chapter describes the potency of the 25-year-old un Convention on the Rights of the Child (crc).1 The crc can serve as a goal and as a means to ­improve children’s rights situations. The rights that guarantee a form of ­participation to children play a crucial role in realising these improvements. In particular, then, the chapter explores the power of the right to participation. It argues that contemporary research into children’s rights situations not only cannot do without the affected children’s input but is considerably enhanced in its impact if they participate in it; indeed, with the proper organisation, children can become a direct part of efforts towards improving these situations. 1 International Convention on the Rights of the Child (crc).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_035

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When the Convention was first drawn up, the idea that children are legal subjects invested with rights, rather than just objects of care, was progressive. It remains a highly relevant notion, but the fact that children’s participation2 can be a means as well as an end was perhaps not fully understood in 1989. Two children’s rights studies are presented as examples. The first study was performed in Dutch asylum-seeker centres,3 the second in the Caribbean part of the Kingdom of the Netherlands.4 In its examination of these studies, this chapter comprises five sections: a discussion of the crc; of the studies; of children’s participation in them; of follow-up to the studies; and concluding observations. 2

The Convention on the Rights of the Child

The celebration of 25 years of the crc on 20 November 2014 was an occasion to reflect on this robust instrument for improving children’s daily living conditions. It is a tool that is and can be used in various ways, and one that grows stronger the more its potential is explored and understood. 2.1 Minimum Standards The standards in the crc concern minimum standards, or the lowest thresholds that a children’s rights situation should meet in states that have ratified the Convention. A prosperous country such as the Netherlands may go further and is encouraged to do so. If other provisions exist that are more favourable to children, then these take precedence.5 The Convention has various important functions. For example, it is (obviously) a legal instrument. It additionally provides pedagogical instruction to all who have children or work with or for them.

2 In line with the terminology of the crc, this chapter uses the term ‘children’ to refer to all young people up to 18 years of age, and hence it includes adolescents. 3 Kloosterboer K Kind in het centrum. Kinderrechten in asielzoekerscentra (2009). Summary in English: Child in the Centre: Children’s rights in Asylum-Seeker Centres. 4 Kloosterboer K Kind op Bonaire [Child on Bonaire]. Kinderrechten in Caribisch Nederland [Children’s rights in the Caribbean Netherlands] (2013). Kloosterboer K Kind op Sint Eustatius [Child on St. Eustatius]. Kinderrechten in Caribisch Nederland [Children’s rights in the Caribbean Netherlands] (2013). Kloosterboer K Kind op Saba [Child on Saba]. Kinderrechten in Caribisch Nederland [Children’s rights in the Caribbean Netherlands] (2013). 5 Article 41 of the crc stipulates that the provisions most favourable to the child take precedence.

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The Convention, moreover, acts as a foundation for youth policy, that is, for governmental policy for children.6 The latter is also apparent from the ­Convention itself, which contains many provisions that directly refer to the government’s responsibility with the phrase, ‘the State Parties shall …’ In its ­explanation of the Convention, the Committee on the Rights of the Child states that the goal of the Convention and the formulation of its article 4 ­require states to provide for legislation that accords with the crc. This legislation, f­urthermore, must be implemented and enforced in actuality. To effect the rights for certain groups of people, it may be necessary to implement specific measures aimed at, for example, addressing certain arrears.7 2.2 Four Basic Principles The Convention sets out four basic principles: • All rights apply to all children: non-discrimination (article 2). • In all actions concerning children, the best interests of the child shall be a primary consideration (article 3). • Right to life and development (article 6). • Respect for the child’s opinion: participation (article 12). These four principles form the foundation of the Convention and must always be considered in explaining and applying the other Convention articles. The Convention is also referred to as ‘holistic’: it forms a coherent whole of interrelated provisions that together bear upon children’s situations and provide minimum standards. 2.3 Right to Participation One of the four pillars or basic principles of the Convention is the right to participation. Article 12 states that children must be afforded the opportun­ ity to form and express their own views in all matters that affect them. Their views must be given ‘due weight’ in accordance with their age and maturity. States must ‘assure’ them this right. The Convention is very clear about children and their right to participation: we should not talk about children (as an object of care) but to them. Children are legal subjects invested with rights and must be able to participate in and contribute to society. They must be given

6 Compare Blaak M et al., Handboek Internationaal Jeugdrecht (2012). 7 Committee on the Rights of the Child, General Comment No. 5 on general measures of implementation of the Convention on the Rights of the Child (2003) CRC/GC/2003/5.

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opportunity to do so in a way that is appropriate to their age and level of development. Children are the primary source of insight into their own situation. The right to participation comprises several aspects, such as listening to children, informing them, involving them in decisions and taking their views seriously. They must also be protected against harmful information. Article 12 cannot be viewed separately from the other children’s rights formulated in the Convention. For every right – whether it pertains to safety, health, education or religion – the exercise thereof must take account of the child’s right to be heard and to be taken seriously. With regard to article 3, it seems almost inconceivable to determine what is in a specific child’s best interest, without drawing on that child’s own view and opinion on the matter.8 In the case of article 6 (the right to life and development), the link is equally clear. Children can only develop optimally if they can express themselves, voice their opinion and learn that they are taken seriously. Article 12 must be considered in conjunction with the other Convention provisions relating to participation,9 such as the right to freedom of expression in article 13; the right to freedom of thought, conscience and religion in article 14; the freedom of association in article 15; and the right to information in article 17. 2.4 Participation and Empowerment Depending on the time period, society and culture, the concept of children’s participation can be understood in different ways.10 One of the ways to understand youth participation is as empowerment: strengthening their socioeconomic situation and social safety.

8

9

10

See also Committee on the Rights of the Child, General Comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para 1) (2013) CRC/C/GC/14. The original text of the proposal for a Children’s Rights Convention, ten years before the final convention text, did not contain a provision as set out in article 12. The right to participation materialised (increasingly) in the course of designing the convention. See Detrick S A Commentary on the United Nations Convention on the Rights of the Child (1999); and Blaak M et al., Handboek Internationaal Jeugdrecht (2012). In 1992 Roger Hart presented the ‘Participation ladder’ with eight levels (Hart RA C ­ hildren’s Participation: From Tokenism to Citizenship (1992)). These eight levels are: manipulation; decoration; tokenism (non-participation); young people assigned and informed; young people consulted and informed; adult-initiated, shared decisions with young people; young people lead and initiate action; young people and adults share decision-making.

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2.5 The Committee on the Rights of the Child on Participation The un Children’s Rights Committee in Geneva sees article 12 – listening to the child’s opinion and taking this seriously – as an essential condition to achieving the implementation of the Convention.11 The Committee published an explanation of article 12 in 2009.12 In this document, the Committee emphasises that participation is an ongoing process in which information must be exchanged to create a permanent dialogue between children and adults. Every child must be given an opportunity to participate in this dialogue. It is notable that the Committee also addresses the age at which children should be able to participate. It does not see biological age as the decisive factor in determining if a child is capable of expressing views and assessing the weight they should carry. These determinations should be made on a case-bycase basis, and factors of importance include social and cultural expectations, the child’s living environment and the extent to which he or she is supported. The Committee finds that very young children can also express their views, even if non-verbally. In its recommendations to States Parties, the Committee is repeatedly ­explicit about the right to participation. On 8 June 2015, it issued its C ­ oncluding Observations on the fourth periodic report of the Netherlands,13 in which it devotes much attention to the position of ‘migrant children’ (including ­children in asylum-seeker centres) and to children in the Caribbean parts of the ­Kingdom of the Netherlands. According to the Committee, these children are insufficiently ‘seen’. Under B, General Principles (arts. 2, 3, 6 and 12 crc), the ­Committee addresses ‘respect for the views of the child’: 30. The Committee notes the appointment of ad litem guardians to children in court proceedings. Nevertheless, it is concerned about the limited opportunities for children to participate in decisions and policies that affect them, especially in the Caribbean part of the Kingdom. 31. In the light of its General Comment No. 12 (2009) on the right of the child to be heard, the Committee recommends that the State party take measures to strengthen this right in accordance with article 12 of the Convention. To that effect, it recommends that the State party:

11 12 13

Blaak M et al., Handboek Internationaal Jeugdrecht (2012). Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009) CRC/C/GC/12. Committee on the Rights of the Child, Concluding Observations on the fourth periodic report of the Netherlands (2015) CRC/C/NDL/CO/4.

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(a) Develop toolkits for public consultation on national policy development to standardize such consultation at a high level of inclusiveness and participation, including consulting with children on issues that affect them; (b) Conduct programmes and awareness-raising activities to promote the meaningful and empowered participation of all children within the family, community and schools, including within student council bodies, with particular attention to girls and children in vulnerable situations; and (c) Institutionalize the children’s Parliaments throughout the Kingdom as a regular event and ensure that it is provided with a meaningful mandate and adequate human, technical and financial resources, in order to facilitate children’s effective engagement with national legislative processes on issues that affect them. 2.6 The Netherlands and the crc The Netherlands was among the more than 60 states to sign the Children’s Rights Convention on 26 January 1990. It ratified the Convention five years later, with the result that the latter entered into force in the Netherlands on 8 March 1995.14 From that date, the Netherlands must comply with the Convention’s stipulations in respect of all children growing up in its jurisdiction, including those living in asylum-seeker centres without a residence permit. The Convention furthermore applies fully and directly to children in the Caribbean Netherlands,15 making the Netherlands government directly responsible.16 This also applies to the period before 2010, when the islands were still part of the Netherlands Antilles.17 Since 1995, the Netherlands has reported four times to the un Committee on the Rights of the Child. On every occasion, the Committee expressed concern about the situation of children in the Caribbean islands and in asylumseeker centres, and offered several recommendations for improvement.18 14 15 16 17 18

Approval by Kingdom Act on 24 November 1994 (Stb. 1994, 862). This concerns the islands of Bonaire, St Eustatius and Saba. See also Netherlands Institute for Human Rights, Gelijke behandeling bij de toepassing van het Kinderrechtenverdrag in Caribisch Nederland (2013) Utrecht. See Blaak M et al., Handboek Internationaal Jeugdrecht (2012). It exceeds the scope of this chapter to discuss these recommendations. They can be found in the respective research reports. This does not apply to the recent Concluding Observations by the Committee of 8 June 2015 (see above).

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Studies on Vulnerable Children in the Netherlands

It is not self-evident that all children in the Netherlands can exercise their rights. This was the reason behind two extensive studies by unicef Netherlands into the situation of children in an asylum-seeker centre (2009) and of children in the Caribbean part of the Kingdom of the Netherlands (2013).19 In the Netherlands, thousands of children grow up in a family living in an asylum seekers’ centre or other form of asylum shelter.20 These children, the subject of the first study, make up between one-third and one-fourth of all asylum seekers in the centralised reception of asylum seekers. After an often stressful journey, the children arrive with their families from different parts of the world to request asylum, and are by definition in a dependent and vulnerable position. They stay in an asylum centre as they wait for the decision on their asylum request, the consequences of a negative decision (return to the origin country or departure for another destination) or for other accommodation in the Netherlands. It means that children sometimes spend years on end living in an asylum centre. The situation of children in these circumstances had not been scrutinised thoroughly, even though experts – such as the members of the un children’s rights committee – had grave concerns about these children’s well-being. The second study pertained to the Caribbean part of the Kingdom of the Netherlands, consisting of six islands.21 There was no overall picture of the situation of the more than 90,000 children growing up on these islands, but experts and organisations had been sounding the alarm about their situation for years. Poverty and violence were often mentioned, in addition to other problems. On several occasions, the Committee on the Rights of the Child voiced its serious concern regarding the extent to which these children could exercise their rights. To map thoroughly the situation of these two groups of vulnerable children, unicef Netherlands conducted two large children’s rights studies, in which 19

20 21

Kloosterboer K Kind in het centrum. Kinderrechten in asielzoekerscentra [Child in the centre. Children’s rights in asylum-seeker centres] (2009); Kloosterboer K Child on Bonaire, St. Eustatius, Saba. Children’s rights in the Caribbean Netherlands (2013). In June 2015, 6,765 children were living in asylum centres; by the end of September 2015, there were 10,532 of them in these centres (http://www.coa.nl). Aruba, Curaçao and St. Maarten have been independent states within the Kingdom of the Netherlands since 2010. Bonaire, St. Eustatius and Saba have been part of the Netherlands since 2010 as ‘public bodies’ or ‘special municipalities’. This study concentrates on the position of children in the Caribbean Netherlands (Bonaire, St. Eustatius and Saba, also referred to as the bes islands).

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children’s own views of their situation formed an important component.22 The two studies were similarly designed and collected information from three ­perspectives: the views and experiences of the children; the views and experiences of experts; and knowledge gained through (literature) research. The studies addressed all topics that affect children: family and parenting, education, health, safety, asylum procedures, recreation and leisure time, ­participation, domestic life, and finances. The children’s actual situation in each of these ­areas was described and evaluated with reference to the minimum standards formulated in the Convention. 4

Children’s Participation in the Studies

In the study on asylum-seeker centres, 66 children aged 4 to 18 years were interviewed, of whom 30 were boys and 36, girls. Additionally, eight parents were interviewed. The interviews were conducted at five asylum centres, which were selected by the Central Agency for the Reception of Asylum Seekers (Centraal Orgaan opvang asielzoekers, coa)23 based on criteria formulated by the researchers. These criteria were an equal distribution of the number of interviewees across the type of asylum centre; across old and new centres; across different forms of accommodation; nearby or far away from a village or city; and spread across the country. As a general criterion, the asylum centre had to be representative of the shelter provided to children of families seeking asylum in the Netherlands. In the Caribbean study, a total of 62 children aged between 6 and 18 years were interviewed across the three islands Bonaire, St. Eustatius and Saba. The preparation for and conducting of the interviews was done in collaboration with local organisations. The selection was based on children’s willingness to participate, the need for a representative balance of boys and girls, the children’s level of education, their background and their age. The local organisations also arranged for sufficient and suitable (separate) rooms to conduct the interviews.

22

23

unicef sees these studies as conditional to the exercise of its duty: to ensure that every country respects and observes children’s rights. Article 45 of the crc stipulates the role that specialised un organisations such as unicef play in the implementation of the Convention and in monitoring compliance. coa is an organisation responsible for the reception of asylum seekers in the Netherlands. For more information see http://www.coa.nl.

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4.1 Methodology The children’s backgrounds were so diverse that a questionnaire validated for a specific group would not be suitable for all children. For that reason, it was decided not to interview the children according to a fixed and validated questionnaire. While the same meticulous approach was maintained throughout, this decision made it possible to adopt an explorative, qualitative approach using semi-structured and group interviews. The researchers wanted to be led by the children and allow them to determine the direction of the interviews.24 The research activities were monitored by a steering group composed of relevant experts. In working with the children, the researchers applied the unicef guidelines for ethical research involving children.25 Varying interview methods were used for the different age groups in order to suit the children’s age, level of development and life-world. The study applied a multidisciplinary approach. With children up to the age of 12, three interview techniques were used in which the element of play had an important role. In both individual and group interviews, children from 12 to 18 years were asked semi-structured questions with the use of a number of tools (see Table 34.1). Most of the children were very eager to participate in the study. Often they were unaccustomed to describing how they felt about things, and some were even genuinely surprised that the interviewers wanted to know their views on a range of matters. Table 34.1 Interview methods used per age group

Age

Interview method

Up to 12 years

• Drawing. • Exploring the environment. • ‘If I was in charge, then …’ • Semi-structured interviews on various topics.

12 to 18 years

24

25

In the concluding phase of the study in the asylum centres, it emerged that similar research has been conducted in a comparable manner among refugee children in Australia. See Gifford S & C Bakopanos et al., ‘Meaning or measurement? Researching the social contexts of health and settlement among newly arrived refugee youth in Melbourne, Australia’ (2007) 20(3) Journal of Refugee Studies. These are now to be found in the Strategic Guidance Note on Ethical Research (October 2013). See http://www.unicef-irc.org/KM/ERIC/.

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4.1.1 Children up to 12 years The interviews with this group of children used techniques that are suitable for children with a short attention span and which incorporated non-verbal elements. The aim was to have the child talk in the most relaxed and pleasant way possible, without exerting any pressure or steering the child in a certain direction. The three components provided for some variety. Most of the children gave a lot of information based on the drawing, while some children really loosened up when playing the game ‘If I was in charge …’ (see below). The different components yielded different types of information. The topics to be addressed by the questions were drawn up in advance:26 family and parenting, housing, recreation and leisure time, health, education, safety, asylum procedure, finances, participation and privacy. These derive directly from the various children’s rights described in the crc. The interviewer began with an open-ended question that would allow further probing. The questions of the interview tool determined the course, but did not have to be phrased literally. The order in which topics were addressed followed the course of the interview. However, it was the intention to give every child the opportunity to say something about all of the topics. Drawing The first component involved drawing. The children were given sheets of drawing paper and magic markers, pencils and crayons, and were asked to draw the house or the room where they lived as well as the people staying with them. It was explained to them that it was not important whether it was a ‘beautiful’ or accurate drawing: whatever drawing they made was fine. The drawing then naturally stimulated a conversation. After the interview, children could have their photo taken with their drawing if they chose to. Exploring the Environment After the drawing component, the interviewers went outside with the children, usually in small groups. They asked the children one by one to point out their favourite place; that is, where they most liked to be, what they found attractive, where they felt happy. The interviewers also asked them if there were any places where they did not like to be or which they were afraid of or did not enjoy visiting for other reasons. 26

The topics were chosen on the basis of an analysis of topics in the crc. The questionnaires created on that basis were compiled during extensive meetings with experts to ensure that every topic was broken down into the right sub-questions and phrased in a child-friendly manner.

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If I was in Charge … ‘If I was in charge …’ is a game. The ingredients are simple: a pile of dressing-up clothes with hats, caps, ties and jackets. One by one the children, all dressed up, could stand up on a table or sit on a chair on a table. They were then invited to say what they would do if they were in charge of the asylum centre or of the island. Would they change anything or keep everything as is? The other children could also put questions to ‘the boss’. They were encouraged to let their fantasies run freely. Fun things were usually mentioned first, but more serious proposals tended to emerge soon afterwards. For instance, an 11-year-old boy said, ‘I wish we were allowed to paint the walls’; a 15-year-old girl said, ‘If I were in charge […] then I would improve education and make sure there’s more to do outside school hours.’ 4.1.2 Children from 12 to 18 years In the interviews with older children it was important that they could shape the conversation by determining the subject, order and manner of discussion. A number of tools were available to assist with this process. First there was a list of areas of life from which the interviewee could choose. There were also photographs on the table of children in various situations, such as a child at play, a happy child, a scared child, a child visiting the doctor, and a child with a pet. These photographs often prompted the interviewee to start talking. The interviewer also had a set of cards with brief descriptions and pictograms of the various rights contained in the crc, complemented with some imaginary rights. Most of the interviews with these older children lasted between 90 and 120minutes. Photography After the interviews, small groups of children were lent digital cameras for a couple of days, with the instruction to photograph or film things and situations that were important to them. They were asked to record both things that worked well and things that could be improved. This image material was incorporated in the research report and used during presentations of the research results, but was not explicitly incorporated in the analysis phase of the study. 4.1.3 Processing All of the interviews with the children were audio-recorded and furnished with supplementary information, such as an anonymised names for the children, their age and sex, and the date and place of the interview. These audio recordings were subsequently transcribed. In the analysis phase, statements

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about the nine areas of life were identified in the interview texts. These statements were compiled in a database, always in the original formulation and sometimes also in edited form. The latter was sometimes required in order to shorten the original formulation or to split it into two different topics. This method, which incidentally was also used for the interviews with the experts and in the literature research, resulted in a research database containing 976 separate statements by children in asylum-seeker centres and 1,222 separate statements by children on the Caribbean islands. The database allows for detailed analyses of the statements according either to topic, location, age category and sex, or to a combination of these variables. 4.2 The Effect of Children’s Participation on the Research The extensive participation of children in the studies of their situation at the asylum centres and on the Caribbean islands had several effects. First, children enjoyed working on a study dealing with their own situation. They felt they were taken seriously, and the process taught them to formulate and express their opinions. Some children ‘grew’ when they noticed that their views are important, and felt motivated to be more active in seeking opportunities for improvement in their daily lives. Secondly, the researchers did not need to restrict themselves to the wellphrased views of an expert or to an apparently objective quantitative overview. They had spent real time with these children and were thus also able to reflect on the non-verbal communication they witnessed during the interviews. Additionally, the interviews with children, and especially the manner in which they were processed, offered researchers the opportunity, during all phases of analysis and reporting, to remain in touch with the children and to use their original statements. This helped prevent an unintentional shift in meaning and undesirable translation into policy jargon. Lastly, the original statements by the children were available for the reports and presentations, as well as for other publications.27 This ensured continuing awareness that the problems that were identified and the solutions that were considered directly involve individual children. Naturally, protecting the interviewed children is of paramount importance, and the researchers only used statements that could not be traced to any child in particular.

27

Naturally, prior to the interviews, the parents of underage children were asked for permission (through [written] information, a permission form and individual contact), the purpose of the interviews was explained clearly to the children, and permission was requested to use their (anonymised) statements.

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4.3 Participation of Children in the Follow-up to the Studies A single quote from a child can be more powerful than a thorough elaboration of the situation of vulnerable children and references to the crc. This already became clear when presenting the two previously mentioned studies (Child in the Centre: Children’s Rights in Asylum-Seeker Centres (2009) and Child on Bonaire, St. Eustatius, Saba (2013)). Furthermore, during the (lobbying) process that followed the publication of the reports, it was evident time and again that a child’s voice carries impact. With the words they use and straightforward formulations, children are often able to succinctly express existing difficulties and propose solutions that no politician or administrator would think of. Their words sometimes serve to illustrate or supplement research findings and often neatly sum up the situations that are described. Children’s input enhances the search for means to improve the children’s rights situation. However, their input should not be viewed separately from other research forms, in which facts and figures are marshalled and the views of experts presented; these forms of input should instead reinforce each other. Children have also participated in the follow-up to both research projects and in the advocacy efforts to improve the situation of their peers. As a result, the topics have held strong interest for policy-makers, organisations and experts that work with or for these children, as well as for other stakeholders. Thus, the topics of ‘children in asylum centres’ and ‘children’s rights in the Caribbean Netherlands’ have been on the political agenda ever since. 4.4 Continued Involvement of Asylum Seekers’ Children The sections above described how children were involved in the research. The impact of their expressed views has been significant, in good part because it was the first time they had been heard. Until these studies, their views were scarcely asked after or listened to; instead, it was assumed that parents can adequately represent their children. The studies have made clear that this notion is simplistic and that children’s views should definitely be taken into account as well. After the research, children were asked for their input on many occasions. A few of these instances and their results are described below. At the presentation of the report Child in the Centre in June 2009, a number of asylum seekers’ children addressed the audience and a short film was shown in which three children describe what it is like to grow up in an asylum centre.28 This film, and the stories by the children in attendance, emphasised the urgency of the need to improve their situation and prompted government officials to make immediate promises of follow-up action. 28 See https://www.youtube.com/watch?v=−2dt6vFCzT4.

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Furthermore, the publication of Child in the Centre led to the establishment of children’s councils in asylum-seeker centres. In these councils, children can indicate what they find important in the centres, the problems they encounter, and the solutions they propose. Where possible, staff members of the centre concerned then respond to these calls to achieve real improvements in the centre and better interaction between children and staff members. After the study a website was set up presenting information about asylum seekers’ children, information intended for children, parents, professionals and other interested parties.29 During the development of this website, one in which children’s stories have a prominent place, children were asked about their needs and involved in its testing phase. The site offers an answer to one of the structural bottlenecks identified in the research: the lack of information about the situation of children in asylum centres. As part of the lobbying efforts to improve the situation for children in asylum centres, several organisations united to establish Werkgroep Kind in azc (‘Working group children in asylum centres’).30 This group maintains regular contact with children living in asylum centres or other reception sites. It also arranges contact between children and, for example, members of parliament,31 which has significant added-value for both parties. Children feel seen, heard and taken seriously, and can communicate what they find important, while the members of parliament can hear the stories directly from the children and thereby maintain a feeling for the practical field. As a result, they are more willing to go the extra mile for these children, who now have a real face. 4.5 Kingdom Children in Action Children in the Caribbean Netherlands are much less used to expressing their opinion than their European counterparts, either because they were never told that their opinion matters or because they are simply not aware that they can have their own opinion on matters. For many Caribbean parents and schools, children’s participation is associated with a lack of respect for elders. This only added to the general amazement at what the children brought to the study and how to-the-point their views were. Parents, teachers, professionals and

29 See http://www.tell-me.nl. 30 For more information (in Dutch) see http://www.kind-in-azc.nl. 31 As with the presentation of the report ‘Het is hier in één woord gewoon… stom!’ (2014), in which children describe their life in family centres. This led to a closed session in the Dutch House of Representatives on 3 June 2015 so that children could describe their situation in a safe setting.

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­ olicy-makers: all were sincerely touched by what the children said, which p contributed to the impact of the research results. Concurrently with the presentation of the research report Child on Bonaire, St Eustatius, Saba, the book Kind op een eiland (Child on an island) was presented at a large conference in May 2013.32 This book centres entirely on the children’s statements. Also, a film was screened in which children represent ‘their’ island, and child reporters reported on the day. The input by children captured the attention of the media as well as those, like politicians, ministries, organisations and experts, who are in a position to improve the children’s rights situation. In September 2013, presentations of the research results were held on the islands. During special lessons at school, children were invited to respond to and discuss the results. This led to some interesting conversations, for example about violence in parenting. Some schools chose to organise a follow-up in the form of educational projects on children’s rights. In 2014, the Kingdom of the Netherlands celebrated its 200th anniversary. In that context, the Kingdom Youth Parliament (kyp) was organised on St. Maarten in May 2014.33 This was a new initiative in which 50 young people from the islands and the Netherlands convened to learn from each other and to determine what and how they wish to contribute to the Kingdom. Children’s rights were an important theme. The situation of children on the islands received a huge amount of attention, partly thanks to the presence of Princess Beatrix at the kyp. As a result of the unicef studies, a Children’s Rights Taskforce has been set up to draw up plans for the improvement of the children’s rights situation on the islands. Each island will elaborate these plans and organise round table discussions with different sections of society. Children will be centrally involved in this process. On the occasion of the 25th anniversary of the crc, unicef held a Children’s Rights Summit, in which young people’s input played a central role.34 One of the themes concerned the Kingdom children, especially with regard to poverty and social exclusion. Children played an important role in the summit preparations and proceedings. New initiatives in which children play a central role continue to emerge. As one example, there is the collaboration between unicef and the Missing 32 See http://www.unicef.nl/wat-doet-unicef/kinderrechten-in-nl/koninkrijkskinderen/ symposium/. 33 See http://www.kingdomyouthparliament.org. 34 On 20 November 2014; see http://www.unicef.nl/wat-doet-unicef/kinderrechten/25-jaar -kinderrechten/verslag-kinderrechtentop.

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Chapter Foundation.35 These two organisations have taken the initiative to establish Children’s Councils at businesses. Now, in consultation with the travel sector on the islands, the possibility of organising Children’s Councils on the islands is being explored, with the first steps having been taken on Curaçao and Aruba in May 2015. Here, children can give their input to the policy of businesses in the tourist sector, which is a very important one on the islands. 5 Conclusion There are several reasons why it is not a good idea to investigate children’s situations without engaging their participation. Their perspective is important to forming a more complete picture of the situation, and often offers refreshing insights, including with respect to possible solutions. It also teaches children to participate in society, and they find it both valuable and enjoyable to contribute their views on their present and future situation. Last but not least, of course, the crc demands it, for all the important underlying reasons. The effects of research and the potential to improve the situation of vulnerable children based on the results are enhanced by children’s input. Policymakers are more inclined to adapt a policy if the children it affects are given a face and a voice; and when professionals engage the children in conversation about improvements, this dialogue has positive effects on the daily lives of the children involved as well as on the professionals. One powerful effect of youth participation in the research project and the follow-up is that it placed children firmly in the picture, both on the Caribbean islands and in the asylum-seeker centres. This in turn leads to involving children more frequently and effectively in policy development and knowledge exchange, as well as in parenting. Much is required to put the crc into concrete action, but the studies described above have shown that this is definitely possible through the participation of children. The ‘success’ of both studies was determined by a number of factors, such as the set-up, manner of implementation, the time period, and the image and independence of unicef. It cannot be objectively measured how children’s participation ultimately contributes to improving their situation. Nevertheless, it is widely acknowledged that the studies have had an u ­ nusually powerful impact. It is quite conceivable that much of this can be attributed to the voices of children being heard in these studies and through the follow-up activities. 35 See http://www.unicef.nl/nieuws/berichten/2014/11/kick-off-raad-van-kinderen-in-zeist en www.missingchapter.org.

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Bibliography Books

Blaak M et al., Handboek Internationaal Jeugdrecht (2012) Leiden: Defence for Children. Detrick S A Commentary on the United Nations Convention on the Rights of the Child (1999) The Hague: Kluwer Law International/Martinus Nijhoff Publishers. Kloosterboer K Kind op een eiland [Child on an island] (2013) Voorburg: UNICEF.

Essays

Hart RA Children’s Participation: From Tokenism to Citizenship (1992) Innocenti Essays No. 4, Florence: UNICEF/Innocenti.

Journal Articles

Gifford S & C Bakopanos et al., ‘Meaning or measurement? Researching the social contexts of health and settlement among newly arrived refugee youth in Melbourne, Australia’ (2007) 20(3) Journal of Refugee Studies.

Reports

Kloosterboer K Kind in het centrum. Kinderrechten in asielzoekerscentra [Child in the Centre: Children’s Rights in Asylum-Seeker Centres] (2009) Voorburg: UNICEF Nederland/Stichting Kinderpostzegels Nederland/Centraal Orgaan opvang asielzoekers. Kloosterboer K Kind op Bonaire [Child on Bonaire]. Kinderrechten in Caribisch Nederland [Children’s Rights in the Caribbean Netherlands] (2013) Voorburg: UNICEF. Kloosterboer K Kind op Sint Eustatius [Child on St. Eustatius]. Kinderrechten in Caribisch Nederland [Children’s Rights in the Caribbean Netherlands] (2013) Voorburg: UNICEF. Kloosterboer K Kind op Saba [Child on Saba]. Kinderrechten in Caribisch Nederland [Children’s rights in the Caribbean Netherlands] (2013) Voorburg: UNICEF.

chapter 35

The Post-2015 Development Agenda: Effective, Structured and Sustainable Participation of Children in Decision-Making, Implementation and Follow-up Alice Kooij Martinez Abstract Has children’s participation been meaningful in the period leading up to the ­adoption of the new post-2015 development agenda? What should their future participation look like if it is to be effectual? What ought the United Nations, its Member States and ngos to be doing? These questions are important, as the post-2015 process offers a major opportunity to advance the right to participation contained in the crc. This chapter concludes that the United Nations and Member States have made significant progress in this regard by enabling children worldwide to make their voices heard in the elaboration of the new agenda. Nevertheless, it is unclear how their proposals were taken into account. As such, there should be heightened focus on taking children’s proposals into account in the implementation and follow-up phase of the post-2015 agenda. This can be achieved by putting in place sufficiently effective, structured and sustainable participation at local, national and international levels; supporting policy officials; and exploring how follow-up with children can be undertaken. The adoption of the post-2015 agenda, along with the twenty-fifth anniversary of the crc, can create strong momentum for improved implementation of children’s right to participation.

1 Introduction This chapter, which has been elaborated from a paper delivered at the Leiden University conference commemorating the twenty-fifth anniversary of the un Convention on the Rights of the Child (crc) and the discussions held on the recently adopted new development agenda (hereinafter post-2015), aims to explore how the right to participation can be advanced through the post-2015 agenda. This is important as, according to the crc, children enjoy the right to have a say on decisions that affect their lives. The post-2015 agenda, which covers many social, economic and ecological issues and is globally applicable, © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_036

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will greatly impact children around the world. This chapter therefore analyses the kind of participation that is needed for children’s voices to be heard and sufficiently taken into consideration by decision-makers in their post-2015 decisions. The chapter begins with an analysis of children’s right to participate in policy decision-making, as the crc does not make any explicit reference to such a form of child participation. This is followed by a discussion of some of the opportunities for participation that children have had in the post-2015 decisionmaking process until the time of writing. The chapter goes on to consider how in coming years governments, the United Nations and non-governmental organisations (ngos) around the world can use the post-2015 agenda as an opportunity to further the implementation of the crc by ensuring effective, structured and sustainable child participation in policy decision-making, implementation and follow-up. 2

Children’s Rights and Participation in Policy Decision-Making

In 1989, un governments identified specific rights within the human rights framework which are tailored and applicable to children1 pursuant to their special needs as minors. These rights were subsequently articulated in 40 substantive articles of the crc. Not only does the crc encompass ‘protection’ and ‘provision’ rights but ‘participation’ rights too. The inclusion of these rights has generated increased attention for involving children in decisions that affect them. Hence, children have more opportunities to participate not only in judicial or administrative proceedings but also with regard to policy processes. In the crc the right to participation cannot be found literally expressed. However, elements of this right can be found in several articles.2 With regard to children taking part in policy decision-making, the following rights need to be considered: the respect for the views of the child (article 12), the right to freedom of expression (article 13), the right to freedom of thought, conscience and religion (article 14), the right to freedom of association and peaceful assembly (article 15), and the right to information (article 17). Within this context, it needs be noted that article 12(1) of the crc constitutes the core legal basis for children to participate in policy decision-making: 1 According to the crc, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier. 2 Ang F, Berghmans E & Delplace M et al., Participation Rights of Children (2006) 9–10.

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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. Moreover, the Committee on the Rights of the Child (hereinafter the Committee) has identified participation as one of the four guiding principles3 of the crc. This means that participation is a general requirement when governments are implementing other rights of the crc. For example, governments should consult children when drafting education, health, mobility and leisure policies. Having established that children have the right to make their voices heard in policy decision-making, the question remains as to whom is responsible for ensuring that children can actually participate. As is the case for any other human rights treaty, this is the obligation of the States Parties to the crc. Governments have the responsibility to inform children about this right and put in place participation mechanisms, both at national and international level. Furthermore, children should be aware that they can participate in policy decision-making; however, the right to participation is by no means an obligation. Since the adoption of the crc, legislation, policies and methodologies have been set up around the world to implement the right to participation. For example, in many countries youth councils have been created, enabling adolescents to give advice to decision-makers on policies that concern them. At eu level, the Agenda for the Rights of the Child (2011) was adopted after a consultation process with children.4 In Bolivia, adolescents were able to influence the local government of Sucre by having them include their policy proposals in the municipal plan.5 These developments concerning the right to participation of the crc are paramount, as children are important stakeholders in policy decision-making. Many decisions that policy-makers take affect them not only now but in their future lives, including in the areas of education, employment, health care, 3 The four guiding principles of the crc are: non-discrimination (art. 2); best interests of the child (art. 3); the right to life, survival and development (art. 6); and the right of the child to express his or her views and for these views to be taken seriously (art. 12). 4 In 2011, the European Commission adopted ‘An eu agenda for the Rights of the Child’. When preparing this document the Commission drew on consultations with children held in 2010 in the 27 eu Member States. European Commission Children’s Rights, as they see them (2011). 5 unicef/Innovations in Civic Participation Adolescent Participation in Latin America and the Caribbean (2010) 20.

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­ obility, spatial planning and climate action. The Committee has formulated m the added value of child participation in policy decision-making in the following way: ‘The views expressed by children may add relevant perspectives and experiences and should be considered in decision-making, policy-making and preparation of laws and/or measures as well as their evaluation.’6 According to unicef, decision-makers need the input of children to make decisions that are more relevant, more effective and more sustainable.7 Thus, child participation contributes to the improvement of their policies. Unfortunately, barriers exist to children’s participation due to adults’ perceptions of children’s capacities and their self-interest in maintaining their own position with respect to children.8 Notwithstanding the increased attention for policy participation by children and its added value for policy-makers, much remains to be done not only to convince policy-makers of its importance but for this type of participation to become more influential in policy decisions. Policy-makers should ensure that children can make their voices heard actively and effectively rather than partially and tokenistically.9 The importance of such meaningful policy participation was recognised by governments at the un General Assembly Special Session on Children in 2002.10 In this regard, the crc Committee has stated that child policy participation should be a long-term process involving the setting up of necessary structures rather than a once-off intervention.11 Nevertheless, the Committee has not specified the manner in which children could participate structurally and sustainably in policy decision-making. It would thus be helpful if it could articulate practical steps for this. Also, it would be valuable for the Committee to confirm that participation should be meaningful to those involved and have a true impact on policy decisions.12 Fortunately, when looking at how effective, structural and sustainable child policy participation can be when put into practice, several Save the Children 6 7 8 9 10 11 12

un Committee on the Rights of the Child, General Comment No. 12 (2009) para. 12. unicef Every child’s right to be heard: A resource guide on the un Committee on the Rights of the Child General Comment No. 12 (2011) 5. Hill M, David J & Prout A et al., ‘Moving the participation agenda forward’ (2004) 18 Children and Society 82. Wall J & Dar A ‘Children’s political representation: The right to make a difference’ (2011) 19 International Journal of Children’s Rights 601. un General Assembly Resolution A world fit for children (2002) para. 32.1. un Committee on the Rights of the Child, General Comment No. 12 (2009) para. 133. Kay E, Tisdall M & Liebel M Theorising children’s participation in collective decision making (2008) 6.

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and unicef handbooks13 are very useful. According to these books, the imbalances in power between adults and children should be addressed, the participation environment should be made child-friendly and participation should be relevant. Moreover, participation should ensure the protection of children, the selection of participants should be based on non-discrimination, and ­follow-up and evaluation should be ensured. In what follows, some of the foregoing matters will be looked at in the light of post-2015 participation. 3

Post-2015 Participation by Children up to the Adoption of the Agenda

In 2000, the Member States of the un established the Millennium Development Goals (mdgs), based upon the Millennium Declaration. The mdgs endeavoured to encourage the eradication of extreme poverty in developing countries, a goal which was to be attained by 2015. However, the goals in particular on sustainable development, education, child and maternal mortality, sanitation and hiv have not been sufficiently achieved.14 Nevertheless, these mdgs have been of paramount importance as they have impacted on the lives of children. The successor to the mdgs, the post-2015 development agenda,15 was adopted at a un summit at the end of September 2015. It seeks to build on the mdgs and complete what they have not achieved, but also aims to tackle development issues that were initially neglected or which have arisen in the interim. The agenda includes 17 universally applicable sustainable development goals (sdgs) and 169 targets. It is hoped that they will stimulate action over the next 15 years in areas of importance to the needs and rights of children, both in developing and developed countries. Unlike the case with the mdgs, children have been able to voice their concerns and ideas in numerous national and international consultations in the process of formulating the post-2015 development agenda. For example, they have participated in general consultations, such as the global, country and thematic consultations of the un Development Group, which resulted in the 13 See unicef Children as advocates: Strengthening child and young people’s participation in advocacy fora (2010) and Save the Children Promoting children’s meaningful and ethical participation in the un global study on violence against children (2003). 14 un The Millenium Development Goals Report 2013 (2013). 15 unga Transforming our world: The 2030 agenda for sustainable development A/RES/70/1 (2015).

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report A million voices,16 as well as in specific consultations, such as the o­ nline consultation of unicef uk17 and the consultations in 12 countries by the Youth Working Group.18 The outcome of the Million voices consultations was used by the un Secretary General to enable the composing of a ‘synthesis’ report that served as a reference point for the post-2015 negotiations, which took place in the first half of 2015. However, it is uncertain how much weight was accorded to the input of children in comparison to other contributions, such as the High Level Panel report,19 the Open Working Group report,20 the un Global Compact reports,21 the Financing Committee report22 and the High Level Political Forum (hereinafter hlpf) declarations.23 When considering children’s right to policy participation, it is a positive development for children to have been consulted on such a large scale. Nevertheless, as already noted, their voices might have had a limited effect on post-2015 decision-making. As a further illustration of this point, in the lead-up to the post-2015 goals the Major Group on Children and Youth (mgcy),24 the official voice of people under 30 years old, was able to make statements in the sessions of the Open Working Group.25 However, when looking at the Opening Working

16 17

un Development Group A million voices: The world we want (2013). unicef uk The world we want to live in: A summary of unicef uk’s consultation with uk children and young people on the post-2015 development agenda (2013). 18 Restless Development & War Child & Youth Business International (Youth Working Group) Youth voices on a post-2015 world (2013). 19 High Level Panel A new global partnership: Eradicate poverty and transform economies through sustainable development (2013). 20 Open Working Group on Sustainable Development Goals Open Working Group Proposal for Sustainable Development Goals (2014). 21 The un Global Compact is a strategic policy initiative for businesses committed to aligning their operations and strategies with ten universally accepted principles in the areas of human rights, labour, environment and anti-corruption. Post-2015 reports are available at https://www.unglobalcompact.org/library (accessed 11 November 2015). 22 Intergovernmental Committee of Experts on Sustainable Development Financing Report of the Intergovernmental Committee of Experts on Sustainable Development (2014). 23 High Level Political Forum on Sustainable Development Ministerial Declaration of the High Level Segment of ecosoc and the hlpf (2014). 24 Further information on the mgcy is available at http://childrenyouth.org/ (accessed 11 November 2015). 25 The statements made by the mgcy in the different thematic sessions of the Open Working Group (2013–2014) are available at http://sustainabledevelopment.un.org/index.php? menu=1573 (accessed 11 November 2015).

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Group’s final report, which contains proposals for sdgs and indicators, insufficient references were made to the mgcy’s statements. Apart from giving input through consultations and meetings, children have also been able to formulate their views by way of participation structures that exist at national and international level. For example, in June 2014, the Post 2015 Global Youth Call26 was presented at the ecosoc Youth Forum by the un Secretary’s General Envoy for Youth.27 A month prior to this, government officials, youngsters and their organisations elaborated the Colombo declaration on youth concerning post-2015 at the World Conference on Youth held in Sri Lanka.28 At national level, the Flemish Youth Council has elaborated a post2015 policy paper with recommendations.29 Nonetheless, as is the case with input through consultations and meetings, the impact these standpoints have had on post-2015 decision-making remains unclear, added to which there has been little follow-up. From January to July 2015, the intergovernmental meetings for the negotiations of the text of the post-2015 agenda took place in different sessions at the un in New York. It was a positive step that mgcy representatives had the opportunity to interact with participants in the negotiations. For example, they were able to participate in national preparation meetings for the different negotiation sessions, they were able to make statements during the negotiations sessions, they organised side events on specific post-2015 topics discussed during the sessions and they were able to meet negotiators to share their proposals.30 26

The Global Youth Call was made with the participation of 1700 youth organisations through the Crowdsourcing Platform of the Global Partnership on Youth in the Post2015 Development Agenda, the mgcy, global network of ngos, youth organisations and regional youth platforms, the un Inter-agency Network on Youth Development, Intergovernmental organisations, and national youth structures. It is available at http://www .un.org/youthenvoy/wp-content/uploads/2014/09/The_Global_Youth_Call.pdf (accessed 11 November 2015). 27 The un Envoy for Youth was appointed in 2013 by the un Secretary General to promote structured mechanisms for youth participation at national, regional and international ­level, more specifically, to promote youth participation post-2015. His work plan is ­available at http://www.un.org/youthenvoy/wp-content/uploads/2014/09/workplan-july -2013.pdf (accessed 11 November 2015). 28 World Conference on Youth 2014 Colombo declaration on youth: Mainstreaming youth in the post-2015 development agenda. 29 Flemish Youth Council Post-2015 position paper (2014). 30 Information on the different post-2015 negotiation sessions and the interaction with stakeholders can be found at https://sustainabledevelopment.un.org/post2015/negotiations (accessed 15 November 2015).

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Nevertheless, it is difficult to know exactly how much impact the views of children and the organisations that represent them had on the adopted text of the post-2015 development agenda. On the one hand, in the post-2015 agenda special attention is given to the needs and rights of children with regard to health care, education, employment, and protection from violence, exploitation and abuse. On the other, insufficient consideration is given to children without parents, street children, trafficked children, children separated from their parents as a result of conflict or disaster or children recruited into armed groups. Child organisations therefore suggest that these children should have been included in the indicators.31 4

Future Ways of Involving Children in the Post-2015 Agenda

Now that the post-2015 agenda has been adopted and its indicators are being set, it is important that children start getting involved in the implementation and follow-up of states to ensure their compliance with commitments made under the agenda. In what remains of the chapter, forthcoming opportunities are considered for children’s participation in the post-2015 agenda. In particular, their participation in the implementation and follow-up of the agenda can play a key role in ensuring that the goals, targets and indicators are effectively implemented at local and national level.32 At local, national and international level, decision-makers should involve children in how to best implement the sdgs and targets through their policies. This can be done best through structural and sustainable participation mechanisms that can lead to effective participation. Children should be able to ­discuss their recommendations among each other as well as with decision- makers. For example, at national level this would involve youth councils and youth parliaments and, at international level, regional and global youth f­orums. In this regard, the ecosoc Youth Forum is important, as youngsters and youth organisations from around the world participate in it annually. Regarding the follow-up, it is important to note that the hlfp stated in its Ministerial Declaration of 2014 that it will conduct regular reviews, starting in 2016, on the implementation of the post-2015 development agenda by un Member States: 31 32

An alliance of child organizations, All children count but not all children are counted (2015). Restless Development & Overseas Development Institute & Plan International Partners for change: Young people and governance in a post-2015 world (2014) 2.

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These reviews shall be voluntary, while encouraging reporting, and shall include developed and developing countries, as well as relevant un entities; be State-led, involving ministerial and other relevant high level participants; provide a platform for partnerships, including through the participation of major groups and other relevant stakeholders.33 Given that the mgcy is a major group, the reference to ‘major groups’ in this Declaration is important as it means the participation of children is recognised in the official post-2015 review process in a structural and sustainable way. Nevertheless, it is important to build upon the participation possibilities that the mgcy already has had in the hlpf, and its predecessor, the un Commission on Sustainable Development, in making their participation more effective. This could be done, for example, by giving children more speaking time for the presentation of their positions. Moreover, for effective participation it is important that the reviews of the hlpf have sufficient weight. The mgcy has rightly pointed out in one of its statements34 that a hlpf reviewing process is needed with sufficient political impact on Member States by holding them accountable through obligatory national reporting. In this way, Member States are motivated to make progress in realising their post-2015 commitments, including those related to children. Unfortunately, the un Member States have decided differently: Our Governments have the primary responsibility for follow-up and r­ eview, at the national, regional and global levels, in relation to the progress made in implementing the Goals and targets over the coming fifteen years. To support accountability to our citizens, we will provide for systematic follow-up and review at the various levels. The High Level Political Forum under the auspices of the General Assembly and ecosc will have the central role in overseeing follow-up and review at the global level.35 What else is important in order for child participation to be effective but also sustainable? According to Lansdown, children should understand what the process is about and what their role is. They must be informed about the power relations and decision-making structures, as they should understand from the 33 34 35

High Level Political Forum on Sustainable Development Ministerial Declaration of the High Level Segment of ecosoc and the hlpf (2014) para. 27. mgcy ‘mgcy on hlpf’ (2014). un General Assembly Transforming our world: The 2030 agenda for sustainable development A/RES/70/1 (2015) para. 47.

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beginning what decisions can be made and by whom, and how they can be challenged. If children discover that they lack the power they thought they had, they could feel resentful about the process and no longer want to participate.36 This is also important in the case of the post-2015 development agenda, as there are so many stakeholders who want to have a say. Moreover, according to the crc Committee, it is essential that decisionmakers understand the relevance of the participation by children and that they have an open mind about it. The Committee has recommended that un Member States promote awareness of the obligation of public officials to take into account the views of children.37 However, working with children might be something new for many post-2015 decision-makers. Governments, the un and ngos should therefore train policy-makers in facilitating child participation in policy decision-making effectively.38 Furthermore, as the post-2015 development agenda is universally applicable and will especially affect marginalised groups, participation should become more representative for it to be effective and sustainable. The selection of children to participate should therefore be sensitive to issues of representation and inclusion.39 Moreover, governments, the un and ngos should take post2015 participation into account in international development cooperation.40 In this way, more children from developing countries can participate in the post-2015 implementation and follow-up process. Lastly, to ensure that children’s participation takes place over the long term and improves the post-2015 agenda’s effectiveness, follow-up of their recommendations should be guaranteed.41 Until now, as noted already, this followup has been insufficient. It is therefore welcome that the Committee has ­recommended to un Member States, as well as the un, that clear guidelines be established on how the views of children presented at forums can be taken into account in the formal political process and the policy-making, and their proposals given a meaningful response.42 36 37 38 39 40 41 42

Lansdown G Promoting children’s participation in democratic decision-making (2001) 9–10. un Committee on the Rights of the Child Days of general discussion on the right of the child to be heard (2006) para. 29. unicef Children as advocates: strengthening child and young people’s participation in advocacy fora (2010) 14–15. Save the Children 12 lessons learned from children’s participation in the un General Assembly Special session on children (2004) 3. un Committee on the Rights of the Child Days of general discussion on the right of the child to be heard (2006) para. 15. unicef The right to participation. un Committee on the Rights of the Child Days of general discussion on the right of the child to be heard (2006) para. 30.

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5 Conclusion This chapter has analysed the right to participation of children in policy ­decision-making by considering their role in the process of formulating the post-2015 agenda, its current implementation and the follow-up phase. Looking at the participation opportunities in the period until now, it can certainly be said that never before have so many children from around the world been able to communicate their views in relation to the decision-making of an international agenda. The un and its Member States have taken considerable steps in recognising children as important stakeholders in international decision-making. Nevertheless, for an adequate implementation of this crc right bestowed upon children, it is paramount that the post-2015 negotiators have sufficiently included the proposals of children and their organisations in the text of the post-2015 development agenda. During and prior to the negotiation sessions, children and their organisations had various opportunities to influence the negotiators with the standpoints they had elaborated. Although important references are made to children’s needs and rights in the final text, the influence of their participation is unclear, as little follow-up was given about what has been done with their proposals. This chapter has argued that children should be able to sufficiently make their perspectives heard and have their views taken into account regarding the implementation and the follow-up of the post-2015 development agenda, both at national and international level. At the un, the hlpf should put in place a robust review reporting process in which children can participate. It should also further strengthen the position of the mgcy. Moreover, existing national and international child participation structures should be used for post-2015 participation. With the help of governments, the un and ngos, these structures should be set up in places where they do not exist. The abovementioned ways to strengthen the means of children’s participation will be effective only if decision-makers recognise that it is important not only to hear children but to take children’s proposals into account in their ­decisions. Governments, the un and ngos should therefore work on awareness-raising, facilitating understanding among decision-makers of the right to policy participation of children as well as its added value. They should also work on ways through which decision-makers can ensure children’s effective, structural and sustainable – rather than token – participation. Furthermore, it would be interesting to discuss how follow-up can be given to children with regard to policy recommendations they have made. For these purposes, the crc Committee could organise a Day of General Discussion. In this way, the twenty-fifth anniversary of the crc and the adoption of

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the post-2015 development agenda can combine in giving momentum to the further realisation of children’s right to participation in policy decision-making, implementation and follow-up. Bibliography Books

Ang F, Berghmans E & Delplace M et al., Participation Rights of Children (2006) ­Antwerp/Oxford: Intersentia.

Articles

Hill M, David J & Prout A et al., ‘Moving the participation agenda forward’ (2004) 18 Children and Society. Kay E, Tisdall M & Liebel M ‘Theorising children’s participation in collective ­decision ­making’ (2008) in European Science Seminar on children’s participation in decision-­making, available at http://www.childhoodstudies.ed.ac.uk/research/ Tisdall+Liebel%20Overview%20Paper.pdf (accessed 27 December 2014). Middleton E ‘Youth participation in the UK: Bureaucratic disaster or triumph of ­children rights?’ (2006) 16(2) Children, Youth and Environment 11. Wall J & Dar A ‘Children’s political representation: The right to make a difference’ (2011) 19 International Journal of Children’s Rights.

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An alliance of child organizations All children count but not all children are counted (2015), available at http://www.efc.be/wp-content/uploads/2015/09/Joint-Letter -on-Indicators-150921.pdf (accessed 11 November 2015) European Commission Children’s rights, as they see them (2011) Luxembourg, available at http://ec.europa.eu/justice/fundamental-rights/files/rights-of-the-child_en.pdf (accessed 11 November 2015) Flemish Youth Council Post-2015 position paper (2014), available at https://vlaamsejeug -draad.be/advies/1408-nieuwe-ontwikkelingsagenda-post-2015 (accessed 11 November 2015) High Level Panel A new global partnership: Eradicate poverty and transform economies through sustainable development (2013) New York: UN, available at http://www.post 2015hlp.org/wp-content/uploads/2013/05/UN-Report.pdf (accessed 11 November 2015) High Level Political Forum on Sustainable Development Ministerial Declaration of the High Level Segment of ECOSOC and the HLPF (2014) E/2014/L.22 – E/HLPF/2014/ L.3, available at http://www.un.org/ga/search/view_doc.asp?symbol=E/2014/L.22& Lang=E (accessed 11 November 2015)

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Intergovernmental Committee of Experts on Sustainable Development Financing Report of the Intergovernmental Committee of Experts on Sustainable Development (2014), available at http://sustainabledevelopment.un.org/content/ documents/4588FINAL%20REPORT%20ICESDF.pdf (accessed 11 November 2015) Lansdown G Promoting children’s participation in democratic decision-making (2001) Florence: UNICEF Innocenti Research Centre, available at http://www.unicef-irc .org/publications/pdf/insight6.pdf (accessed 11 November 2015) MGCY ‘MGCY on HLPF’ (2014), available at https://childrenyouth.files.wordpress .com/2014/06/mgcy-on-hlpf.pdf (accessed 11 November 2015) MGCY information, available at http://www.uncsdchildrenyouth.org/pages/about .html (accessed 11 November 2015) MGCY statements thematic sessions of the Open Working Group (2013–2014), available at http://sustainabledevelopment.un.org/index.php?menu=1573 (accessed 11 November 2015) Open Working Group on Sustainable Development Goals Open Working Group ­Proposal for Sustainable Development Goals (2014) A/68/970, available at http://­ sustainabledevelopment.un.org/focussdgs.html (accessed 11 November 2015) Restless Development & War Child & Youth Business International (Youth Working Group) Youth voices on a post-2015 world (2013), available at http://www.youthpost 2015.org/wordpress/report/youthvoices.pdf (accessed 11 November 2015) Restless Development & Overseas Development Institute & Plan International ­Partners for change: Young people and governance in a post-2015 world (2014), ­available at http://restlessdevelopment.org/file/partners-for-change-young-people-and-gov ernance-in-a-post-2015-world-pdf (accessed 15 November 2015) Save the Children Promoting children’s meaningful and ethical participation in the UN global study on violence against children (2003), available at http://toolkit.ineesite .org/toolkit/INEEcms/uploads/1033/Promoting_Childrens_Meaningful_Ethical _Part.PDF (accessed 15 November 2015) Save the Children 12 lesson learned from children’s participation in the UN General Assembly special session on children (2004) London, available at http://resourcecentre .savethechildren.se/sites/default/files/documents/4849.pdf (accessed 11 November 2015) UN Committee on the Rights of the Child Days of general discussion on the right of the child to be heard (2006), available at http://www.ohchr.org/EN/HRBodies/CRC/ Pages/DiscussionDays.aspx (accessed 16 November 2015) UN Committee on the Rights of the Child, General Comment No. 12 (2009) CRC/C/ GC/12, available at http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVer sions/CRC-C-GC-12.pdf (accessed 15 November 2015) UN Development Group A million voices: The world we want (2013) UN Development Group: USA, available at http://www.worldwewant2015.org/millionvoices (accessed 11 November 2015)

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UN General Assembly Resolution: A world fit for children (2002) A/RES/S-27/2, available at http://www.unicef.org/specialsession/docs_new/documents/A-RES-S27-2E.pdf (accessed 11 November 2015) UN General Assembly Transforming our world: The 2030 agenda for sustainable development A/RES/70/1 (2015), available at http://www.un.org/ga/search/view_doc .asp?symbol=A/RES/70/1&Lang=E (accessed 11 November 2015). UN Global Compact ‘UN post-2015 development agenda’ including several documents, available at https://www.unglobalcompact.org/issues/partnerships/post_2015 _development_agenda.html (accessed 11 November 2015). UN Sustainable Development Network, information on the intergovernmental negotiations, available at https://sustainabledevelopment.un.org/post2015/negotiations (accessed 11 November 2015) UN The Global Youth Call: Prioritizing Youth in the Post-2015 Development Agenda (2014) New York, available at http://www.un.org/youthenvoy/wp-content/ uploads/2014/09/The_Global_Youth_Call.pdf (accessed 11 November 2015) UN The Millenium Development Goals Report 2013 (2013) New York, available at: http:// www.un.org/millenniumgoals/pdf/report-2013/mdg-report-2013-english.pdf (­accessed 11 November 2015) UNICEF Children as advocates: Strengthening child and young people’s participation in advocacy for a (2010) New York, available at http://www.unicef.org/adolescence/ files/SAF_resources_childrenadvocates.pdf (accessed 15 November 2015) UNICEF Every child’s right to be heard: A resource guide on the UN Committee on the Rights of the General Comment No. 12 (2011), available at http://www.unicef.org/ french/adolescence/files/Every_Childs_Right_to_be_Heard.pdf (accessed 11 November 2015) UNICEF The right to participation, available at http://www.unicef.org/crc/files/Right -to-Participation.pdf (accessed 16 November 2015) UNICEF UK The world we want to live in: A summary of UNICEF UK’s consultation with UK children and young people on the post-2015 development agenda (2013), available at http://www.unicef.org.uk/Documents/Publications/post2015summarySept2.pdf (accessed 11 November 2015) UNICEF/Innovations in Civic Participation Adolescent Participation in Latin America and the Caribbean (2010) UNICEF: Panama, available at http://www.unicef .org/adolescence/files/What-Works-Finding-thier-voice-English.pdf (accessed  11 November 2015) UNSG Envoy for Youth Summary of work plan (2013), available at http://www.un.org/ youthenvoy/wp-content/uploads/2014/09/workplan-july-2013.pdf (accessed 11 November 2015) World Conference on Youth 2014 Colombo declaration on youth: Mainstreaming youth in the post-2015 development agenda, available at http://wcy2014.com/pdf/colombo -declaration-on-youth-final.pdf (accessed 11 November 2015).

chapter 36

Enhancing Children’s Participation and the Enforcement of their Rights: The Kenyan Experience Noah M.O. Sanganyi1 Abstract The crc, acrwc, the Children Act and the Kenyan Constitution envisage the participation of children by expressing their views in an effort to uphold their rights. The promulgation of the Constitution of Kenya of 2010 provided the impetus for developing a framework for establishing Children Assemblies. The Kenya Children Assembly (kca) was adopted in 2010/2011 and coincided with the launch and operationalisation of the County Children Assemblies in all 47 counties. To increase children’s participation, the Department of Children Services formulated operational guidelines for the Children Assembly which would enhance the Assembly’s potential to reach marginalised children. These guidelines seek to develop effective child participation at all levels – in families, communities, organisations and institutions – and to provide practice standards aimed at providing skills for effective engagement with children as well as to protect children from abuse during participation. Several methodologies engage children in adult forums: drama, role-play, music, poetry, painting, sculpture, print and electronic media, child-led initiatives, child clubs, child-to-child forums and daily life in families and schools. Since its inception, the Kenya Children Assembly has made a significant contribution to children participation locally and regionally.

1 Introduction Kenya is a signatory to the un Convention on the Rights of the Child (crc) and the African Charter on the Rights and Welfare of the Child (acrwc). The right to participation as outlined in articles 12–15 of the crc and article 7 of the acrwc provides children with the means by which they can engage in those

1 I extend special thanks to the Ministry of Labour and East African Community Affairs and GOAL Kenya for the moral and financial support they have continued to offer me in my scholarly work.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_037

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processes of change that will bring about the realisation of their rights and prepare them to play an active part in society and inspire change. These have been domesticated and incorporated into Kenyan legislation through the Children Act of 2001. The recently enacted Constitution of Kenya (2010) also outlines progressive child rights provisions. Apart from these two comprehensive laws, there are other pieces of legislation enforcing the rights of children in different situations. The significance of these laws and policies has seen the country develop and implement programmes aimed at improving the situation of children by enforcing specific rights. Various institutions in Kenya are mandated with the enforcement of children rights, from the central government to the lower tiers of government at the community level. The Constitution of Kenya provides for a comprehensive Bill of Rights. Article 56(d) provides that the state shall put in place affirmative action programmes designed to ensure that minorities and marginalised groups develop their cultural values, languages and practices. The rights of children are covered under article 53, which, inter alia, provides for safeguards for the rights and welfare of the child, and under Chapter 11, which provides for a devolved government to facilitate easier access to services for the people. National statistics show that the majority of children in Kenya are deprived of one or more of their human rights. Seven-point-eight million children are deprived of access to safe drinking water; 15.8 million are deprived of access to improved sanitation; 13.1 million have inadequate shelter; 5.3 million aged 6–17 years are deprived of adequate education; 1.1 million children under 2 years have not received all recommended vaccinations; 2.1 million children are stunted; and 5.2 million do not have access to information sources.2 Child participation is central to the development agenda. As part of their development efforts, the un Member States pledged to meet eight goals by 2015. Six of the eight Millennium Development Goals (mdgs), namely mdgs 1–6, can best be met as the right of the child, health, education, protection and equality are protected. Carol Bellamy, a former director of unicef, stated that meeting the goals of a world fit for children and attaining the mdgs could be done only with the full participation of children and young people.3 In Kenya, children are recognised as implicit participants, beneficiaries and targets in the country’s Vision 2030 Development Plan.4 2 Ministry of State for Planning, National Development and Vision 2030 mdg Status Report for Kenya, 2011 (2012a). 3 unicef The State of the World’s Children 2003 (2002). 4 Government of Kenya Situation Analysis of Children, Young People and Women in Kenya: Securing Kenya’s Future in the Hands of the Children and Young People (2009) 11.

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The objective of this chapter is to focus on the Kenyan efforts to enhance child participation in the country. It discusses the Children Assembly as an avenue for children to participate in matters that affect them, a discussion which addresses the factors that necessitated the Assembly’s launch, the lessons that have been learnt, and the challenges that must be faced. 2

Child Participation

According to Van Beers, child participation is a ‘process in which children display best their abilities by expressing their ideas, viewpoints and having their problems solved, suitable to children’s ages and bio-psychological levels of development’.5 Child participation entails encouraging children to make their views heard on issues that affect them.6 It encompasses the involvement of girls and boys in the decisions and actions that affect their lives, the lives of their families and community and the larger society in which they live.7 The National Council for Children’s Services (nccs) is a semi-autonomous government agency established under Section 30 of the Children Act 2001 to exercise general supervision and control over the planning, financing and coordination of child rights and welfare activities and to advise the government on all aspects thereof. The nccs defines child participation as ‘a process of child development that provides an opportunity for children to be involved in decision-making on matters affecting their lives, and to express their views in accordance with their evolving capacities’.8 2.1 Child Participation in Kenya The Africa Fit for Children is a pan-African forum for children mandated by the Organisation of African Union (oau) Secretariat to develop an African Common Position on children affairs. During the Cairo 1 and 2 Summits, identified participation of children and youth as a primary step to finding solutions to the problems they face and building their self-esteem so that they become responsible citizens who contribute to meaningful development of themselves and the state. The activities for action in the Cairo 2 Summit included promoting the right to participation of all children; identifying avenues for child 5 6 7 8

Van Beers H Children’s Participation: Experiences in Capacity Building and Training (2002) 10. unicef The State of the World’s Children 2003 (2002) 33. Feinstein C, Karkara R & Laws S Child Participation: Workshop Report (2004) 7. The National Council for Children’s Services (nccs), Republic of Kenya The Framework for the National Child Protection System for Kenya (2011) 23.

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­ articipation; involving children in celebrations of the Day of the African p Child; and promoting children’s participation in sports and cultural activities. In 2004, stakeholders working with children initiated an effort to develop guidelines for child participation. This was meant to provide a generally accepted understanding of the concept and practice of child participation. In 2005, the national workshop for children and policy-makers on child participation guidelines was held in Nairobi in order to discuss the draft document. The guidelines for child participation in Kenya were finalised and launched in 2008 after discussions at the workshop.9 These guidelines define child participation as ‘a process that gives the child opportunity to be involved in decision-making on personal matters, community and national affairs’.10 According to the Save the Children Alliance, empowering children through participation enables them seek to enjoy their full potential.11 The CRADLE, a children’s foundation, reports that most organisations now incorporate child participation in most of their programmes.12 2.2 Avenues for Children Participation There are a number of avenues to promote children’s participation. In Kenya, these are Children Assemblies, children voices forums, student councils and the child rights clubs that have been established to give children a chance to learn about their rights as well as offer a forum for them to provide input on policy matters. In each of Kenya’s 47 counties, there is an assembly with a membership of 20 girls and 20 boys, with a percentage reserved for children with special needs and from minority communities. The Children Assemblies are funded by the government through the Department for Children Services (dcs).13 Child participation can be traced back to the late 1990s in efforts supported by non-state actors, beginning with the Children’s Parliament. However, due to lack of adequate funding and national coordination, the effectiveness of the Children’s Parliament in promoting advocacy at a national level was poor. This was compounded by the scarcity of data on child participation and a lack 9 10

11 12 13

Mbugua JW Promoting child rights: reflections on key processes of children sector in Kenya from 1989 onwards as recorded by some national civil society actors (2012) 9. Wainaina RW Factors influencing application of child right to participation in decision making: The case of selected charitable children institutions in Juja constituency, Kiambu County, Kenya (2015). Palmqvist E Child Rights in Kenya – An Analysis based on the crc Reports (2006) 19. Palmqvist E Child Rights in Kenya – An Analysis based on the crc Reports (2006) 19. Government of Kenya Second State Party Report: the African Charter on the Rights and Welfare of the Child (2013) 10.

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of evaluations assessing the impact or outcome of child participation in the country. This led to the guidelines for establishment and management of Children Assemblies, 2011, which were developed by the government in collaboration with unicef and civil society organisations. Later in 2011, the government, through the dcs, facilitated the establishment of Children Assemblies in all 47 counties. The overall goal of the Children Assemblies is to create a formal, guaranteed state-funded mechanism for children to participate in influencing policy.14 Children Assemblies bring together children from diverse ethnic and social backgrounds. As children interact they learn to appreciate and respect each other’s differences. The Assemblies also provide an opportunity to enhance cohesion and a sense of nationalism. 2.3 Kenya Children Assembly The Kenya Children Assembly was launched on 24 April 2012, during the second Kenya Children Assembly held from 30 April to 1 May 2013. Key recommendations from the workshop included raising awareness about Children Assemblies among children and adults; publicising the kca through the media; sharing kca reports with county and central government; sharing video documentaries of the proceedings of the assemblies; and giving children the opportunity to sit with county governments to discuss their issues. There are three levels of the Children Assemblies in Kenya today – at national, county and sub- county levels. The Children Assembly in this new structure has been able to enhance its advocacy by having a grassroots approach to children’s issues. The devolved structure further provides an opportunity for children’s participation because, through their independence, county governments can allocate funds and facilitate Children Assemblies in their jurisdictions. The devolved system of government now provides a channel for children’s issue to be communicated to the central government.15 The kca term of office is two years, and new elections are scheduled to be held at both national and county levels in 2016. Each year the National Assembly meets once, County Assemblies meet twice, and Sub-County Assemblies, which feed into County Assemblies, meet three times.16 14 15 16

Mbugua JW Promoting child rights: Reflections on key processes of children sector in Kenya from 1989 onwards as recorded by some national civil society actors (2012) 51. Malai S ‘Devolution: Kenya makes great strides in child participation: Children from across Kenya take part in the Children Assembly’ (2013). Ministry of Gender, Children and Social Development, Department of Children Services National Plan of Action for Orphans and Vulnerable Children: Kenya 2007–2010 (2008) 21.

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Enforcement of Child Rights

Kenya has made significant efforts to provide opportunities for children to enjoy their basic human rights. These include the right to food security, health and education, particularly for orphans and vulnerable children (ovcs). The National Plan of Action on Orphans and Vulnerable Children 2007–2010 details strategies to reduce deaths through hiv and aids, enhance support for orphans and vulnerable children through policy development, and provide safety nets such as cash transfer schemes for ovcs.17 The most comprehensive efforts to address child rights among ovcs have been the social protection programmes initiated by the government in 2004. These include the Free Primary Education (fpe) policy, which aims to provide children with access to basic education. Basic education allows children to be able to learn about themselves and their environment; it empowers individuals and raises their awareness about issues in their environment. Through free primary education, children have been able to learn about their basic rights and opportunities for addressing these rights. Participation in Children Assemblies has been promoted by primary schools around the country. There are other local institutions that seek to enforce child rights. Legislation enacted to support child rights includes the hiv and aids Prevention and Control Act (2006); the Sexual Offences Act (2006); the Persons with Disabilities Act (2003); the National Children Policy (2010); the Counter-Trafficking in Persons Act (2010); the Prohibition of Female Genital Mutilation Act (2011); the National Social Protection Policy (2011); and the Social Protection Policy (2013).18 By virtue of their age, all children are vulnerable to abuse; however, children in institutions are in more need of being engaged in the decision-making processes as they are more vulnerable to it. In Kenya, children in charitable institutions for children are equally exposed to abuse, including physical, emotional and sexual abuse, neglect, assault and exploitation. Perpetrators include staff in these institutions who serve as secondary as well as primary caregivers. Caregivers should be literate, knowledgeable and physically and emotionally healthy, but this is not always the case since the majority of them have limited formal education and are not fully aware of their role in relation to the children in their care.19 17 18 19

Ministry of Gender, Children and Social Development, Department of Children Services National Plan of Action for Orphans and Vulnerable Children: Kenya 2007–2010 (2008) 24. Mbugua JW Promoting child rights: Reflections on key processes of children sector in Kenya from 1989 onwards as recorded by some national civil society actors (2012) 12. The National Council for Children’s Services (nccs), Republic of Kenya The Framework for the National Child Protection System for Kenya (2011) 18.

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In terms of the Millennium Development Goals (mdgs) relating to children, Kenya has made significant progress. For instance, there has been an increase in educational enrolment (mdg 2); an increase in gender parity in enrolments, particularly in primary education (mdg 3); reduced child mortality (mdg 4); and reductions in the burden of hiv and aids (mdg 6). However, despite progress in reducing child malnutrition and maternal mortality (mdg 5), and ensuring access to safe water and sanitation, this progress was insufficient to reach the 2015 target.20 4

Challenges of Child Participation and Enforcement of Child Rights

The Africa Fit for Children (affc) + 10 Kenya Report (2007–2012) identifies the following challenges in regard to child participation in Kenya: negative attitudes about child participation; intergenerational poverty; scarcity of data and information on children participation practices; and lack of impact assessment reports on child participation outcomes. One of the major challenges to child participation are the negative attitudes that surround it. The Kenyan community has more than 40 tribes with rigid cultural norms and any new ideas that are introduced to encourage behaviour change are labelled as alien or neo-colonialism. This kind of attitude affects any process intended to encourage children and youth participation at the level of the family, church/mosque, school and community. In this regard, the CRADLE finds that the framework for child participation in Kenya is often marginal. For instance, children are not often directly involved in legislative and policy development processes. During the constitutional review process, they were allowed to give their views to the Constitution of Kenya Review Commission (ckrc) commissioners, but thereafter were not allowed to actively participate in the constitutional development process. Secondly, poverty remains a hindrance to child participation. The notion of child participation is particularly difficult for poor and disadvantaged parents to understand and practice because they themselves have little or no education or are victims of neglect and child abuse. Intergenerational poverty produces vulnerable children who are more likely to be engaged in labour, to miss out on formal schooling programmes, and to be victims of abuse. Children participation often takes a back seat in agenda-setting in the ­Kenyan context due to other issues such as poverty and politics. The majority 20

Ministry of State for Planning, National Development and Vision 2030 Kenya Social Protection Sector Review: Executive Report (2012) 23.

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of the population lives under the poverty line and child participation has yet to receive the attention it deserves. Despite ongoing initiatives at the grassroots level and in rural areas, child participation remains an alien issue and this hinders progress in its enhancement. Thirdly, scarcity of data and information on children participation practices due to lack of documentation has also hampered child participation efforts. Effective collaboration among policy-makers, the media and like-minded stakeholders has not been fully achieved. The information required for the familiarisation of the content regarding child participation to the community has been available only to very few individuals who deal directly with the target groups and has yet to reach every individual in the community. Many rural areas also lack a variety of child participation forums, and this works against the receipt of information.21 Fourth, lack of impact assessment reports on child participation outcomes has hindered the continued growth of child participation structures in Kenya. Evaluations are an important component of any initiative or programme as they indicate what is or is not working and allow corrective measures to be identified. The Government of Kenya has been supporting Children Assemblies by providing funds and facilitating exchange programmes for children to express themselves. However, since the Assemblies were instituted no evaluation has been undertaken to assess their impact in influencing policy or enhancing community respect for children’s opinions. 5 Conclusion Investment is required in building child-friendly spaces where children meet to share ideas on national development issues, including in their county and community. In the current framework for child participation, public primary schools, churches, halls and public spaces remain the areas where Children Assemblies are conducted. There is a need for more spaces designed for Children Assembly activities, because the lack of designated locations limits the Assemblies’ effectiveness. There is a lack of budgetary allocations specifically for child participation activities at both national and county government levels. The incentive to implement Children Assemblies through a national framework was to institute coordinated action on children participation. Since their inception in 2012, Children Assemblies have discussed and deliberated on different issues. 21

Palmqvist E Child Rights in Kenya – An Analysis based on the crc Reports (2006) 35.

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­However, these issues are often not included in the agenda-setting or implemented. This points to a lack of political commitment to adopt the recommendations of the children. There is a need to ensure that children’s views on matters relating to planning, budgeting and policy frameworks at the national and county levels are taken seriously. Community knowledge about Child Assemblies is low. There need to be awareness-raising initiatives in local communities through state forums such as chief barazas (village meetings) and forums run by civil society organisations, including faith-based organisations, on the importance of child participation, as well as the constitutional right of children to be allowed to express their own opinions on state matters without intimidation. Bibliography Books

The National Council for Children Services Good Practice in Childcare: A Manual for Children Caregivers (2011). Van Beers H Children’s Participation: Experiences in Capacity Building and Training (2002) Stockholm: Save the Children.

Reports

Feinstein C, Karkara R & Laws S Child Participation: Workshop Report (2004) Stockholm: Save the Children. Government of Kenya Second State Party Report: The African Charter on the Rights and Welfare of the Child (2013). Government of Kenya Africa Fit for Children (AFFC) +10: Kenya Report (2007–2012) (2014). Government of Kenya Situation Analysis of Children, Young People and Women in Kenya: Securing Kenya’s Future in the Hands of the Children and Young People (2009). Ministry of State for Planning, National Development and Vision 2030 MDG Status Report for Kenya, 2011 (2012a). Ministry of State for Planning, National Development and Vision 2030 Kenya Social Protection Sector Review: Executive Report (2012b).

Miscellaneous

Malai S ‘Devolution: Kenya makes great strides in child participation: Children from across Kenya take part in the Children Assembly’ (2013), available at http://www .unicef.org/kenya/media_12538.html (accessed 12 October 2014).

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Mbugua JW Promoting child rights: Reflections on key processes of children sector in Kenya from 1989 onwards as recorded by some national civil society actors (2012) Stockholm: Save the Children. Ministry of Gender, Children and Social Development National Plan of Action for Orphans and Vulnerable Children: Kenya 2007–2010 (2008) Nairobi: Government of Kenya. National Council for Children’s Services The National Children Policy (2009), available at http://www.africanchildforum.org/clr/policy%20per%20country/kenya/kenya_ children_2008_en.pdf (accessed 19 January 2016). Palmqvist E Child Rights in Kenya – An Analysis based on the CRC Reports (2006) Stockholm: Save the Children. The CRADLE The Children Foundation; Absent Voices; Mainstreaming Child Rights in the Constitutional Review Process (2003). The National Council for Children’s Services (NCCS), Republic of Kenya The Framework for the National Child Protection System for Kenya (2011). UNICEF The State of the World’s Children 2003 (2002), available at http://www .unicef.org/sowc/archive/ENGLISH/The%20State%20of%20the%20World’s%20 Children%202003.pdf (accessed 19 January 2016). Wainaina RW Factors Influencing Application of Child Right to Participation in Decision Making: The Case of Selected Charitable Children Institutions in Juja Constituency, Kiambu County, Kenya (2015) (Unpublished research project, University of Nairobi, Kenya).

chapter 37

unicef: Engaging Stakeholders on Children’s Rights Florence Charrière Abstract The business sector obviously can have a great impact on the well-being of children, both positively and negatively. unicef’s Corporate Social Responsibility unit seeks to promote this question as a core topic in the business world. This chapter builds on guidance developed by unicef to help companies engage stakeholders on children’s rights. We identify these stakeholders, prioritise them, and underline the main reasons for engaging them on children’s rights. We also address the problem of how and when to consult children directly. The chapter concludes that children should be consulted only if no other stakeholder can provide sufficient insight into children’s reality, and that, if they are consulted, the greatest care must be taken to avoid harming them.

1 Introduction The business sector has an impact on every aspect of society and has the potential to either be a positive force for reinforcing human rights or have a negative impact on the well-being of people and the environment. Children are key stakeholders of business – as child workers, children of employees and future business leaders. Corporations seeking to fulfil their responsibilities towards children should comply with applicable laws and be consistent with international standards on children’s rights, particularly those in the un Convention on the Rights of the Child (crc) and its Optional Protocols. Companies should integrate children’s rights in their policies and procedures, and practise these measures in their relationships. In this context, unicef’s Corporate Social Responsibility (csr) unit seeks to promote child rights as a core topic in the business and human rights agenda, addressing the accountability of business so that it has a positive impact on children. This chapter builds on guidance developed in a process led by unicef to help companies engage stakeholders on children’s rights as part of enhancing their standards and practices at the corporate and the site level; it also

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_038

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highlights key outputs of the process of developing this guidance.1 The chapter is divided into five sections. Section 1 examines the Children’s Rights and Business Principles; Section 2 explains the importance of introducing stakeholders to children’s rights; Section 3 deals with the question of identifying these stakeholders. The problems of interviewing children are addressed in Section 4, and Section 5 concludes the chapter. 2

Background: The Children’s Rights and Business Principles

Developed in a process led by unicef, the un Global Compact, and Save the Children, the Children’s Rights and Business Principles (the Principles)2 are the first comprehensive set of principles to guide companies on the full range of actions they can take in the workplace, marketplace and community to respect and support children’s rights. The Principles build on the crc and elaborate on the implications of the Guiding Principles on Business and Human Rights, providing companies with an approach to respecting and supporting children’s rights throughout their activities and business relationships. In doing so, the Principles help to elaborate the expectations of and opportunities for business in relation to children. Actions for all business include policy commitment, due diligence and childsensitive processes to enable remediation when adverse impact is identified. The Principles call on businesses to: 1 2 3 4 5

Respect children’s rights and commit to supporting the human rights of children. Contribute towards the elimination of child labour, including in all business activities and business relationships. Provide decent work for young workers, parents and caregivers. Ensure the protection and safety of children in all business activities and facilities. Ensure that products and services are safe, and support children’s rights through them.

1 Any reference made to a company’s stakeholder engagement processes does not imply endorsement by unicef of their policies and practices. Rather, these are intended to demonstrate learning examples of how companies are engaging stakeholders on child rights issues. For more information, visit http://www.unicef.org/csr. 2 United Nations Children’s Fund, United Nations Global Compact and Save the Children Children’s Rights and Business Principles (2012).

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Use marketing and advertising that respect and support children’s rights. Respect and support children’s rights in relation to the environment and to land acquisition and use. Respect and support children’s rights in security arrangements. Help protect children affected by emergencies. Reinforce community and government efforts to protect and fulfil children’s rights.

To support companies in the implementation of the Principles, unicef has developed a set of guidance documents that were piloted by more than 50 companies before they were finalised. Objectives of Promoting Engagement with Stakeholders on Children’s Rights The Principles offer guidance to companies on how to engage stakeholders on children’s rights as part of enhancing their standards and practices at both the corporate and the site level. Due diligence identifies stakeholders’ engagement as a key aspect of the process; this guidance, therefore, serves as a companion piece to unicef’s suite of tools to support companies in implementing the Children’s Rights and Business Principles. Its objective is to guide companies on why, with whom and how business should engage stakeholders – both children and child rights advocates – on issues affecting children, in order to gain a better understanding of a company’s actual or potential impacts on children’s rights. A company may engage stakeholders on children’s rights depending on the level of its impact on children’s rights, the size of the business, and the nature and context of the operation.

2.1

2.2 Methodology All guidance relevant to how companies may integrate children’s rights has been developed in consultation with companies, csr, human rights consu­ ltancy companies, academia, civil society and international organisations. This process has been as important as the product. In the process of finalising the various tools for business, unicef engaged some companies to test the tools, while other companies only considered and commented on them. As business has been directly involved in the process of developing the guidance document, companies are more likely to understand the relevance of children’s rights in their sustainability work. unicef guidance in this complex area of work will continue to evolve. As such, all materials are introduced as ‘living’ documents in which further input and sharing of experience are welcomed.

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Why Engage Stakeholders on Children’s Rights?

3.1 Purpose Children are both rights holders and stakeholders, as companies interact with them on a daily basis as workers, consumers, community members and dependants of employees. Children also represent the next generation of workers and consumers for every business. Thus it is important to hear, understand and respond to their views. Engagement on children’s rights can help business to better mitigate and manage risk, safeguard reputation, and increase the social license to operate. Engaging stakeholders on children’s rights can inform the development of company policies, human rights due diligence processes (assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses and communicating how impacts are addressed) and the development of grievance and remediation mechanisms. Stakeholder engagement can also feed into a company’s broader sustainability strategy and long-term goals. Moreover, engaging with child rights stakeholders can inform broad sustainability strategies, support the process of implementing human rights, inform materiality exercises,3 or enable a company to delve deeper into specific material issues to determine appropriate actions and responses. 3.2 Breadth of Engagement Engagement may take place at the corporate or the site level. In some cases, companies may choose to carry out stand-alone engagement processes on children’s rights. In others, they could integrate children’s rights issues or children’s perspectives into broader stakeholder engagement processes – whether carried out regularly (for example, on an annual cycle) or in relation to a specific issue, product launch or country/community of operation. Companies can avoid ‘engagement fatigue’ on the part of the company and the stakeholders by integrating consultations on children’s rights into broader assessments. Regardless of the approach, stakeholder engagement on children’s rights requires early, proactive and ongoing interaction with potentially affected stakeholders or child rights advocates to identify possible impacts before they occur.4 3 A materiality exercise is the process of identifying and prioritising sustainability issues to ensure the greatest risks and opportunities are addressed first and that company resources are focused strategically. 4 Shift Bringing a Human Rights Lens to Stakeholder Engagement: Shift Workshop Report No. 3 (2013) 11.

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3.3 Prioritising Issues for Engagement Companies can engage with stakeholders to explore a number of child rights issues in the workplace, marketplace and community. The types of impacts will vary depending on the industry of the company and its size and location. However, child rights impacts that can occur across a number of industries include: • occurrence of child exploitation, violence and abuse in the workplace, with suppliers or customers, or in the community where the company operates or makes social investments; • risks or opportunities associated with employment of young workers in direct operations or in the supply chain; • risk or prevalence of illegal child labour in key markets or within the supply chain; • marketing strategies that affect children and create opportunities to improve marketing practices to support children’s rights; • products and services that can cause mental, moral or physical harm to children; • promotion of products or services that can serve or lead to exploitation of children; • development of products or services that are essential to children’s survival and/or beneficial to their well-being; • impact of resettlement, livelihood displacement or land use on children’s health, access to social services and well-being; • impacts of business operations in local communities; • benefit to children of future or existing community investment initiatives by investigating quality, access and need for social services, or whether investments may cause adverse consequences such as inequality and conflict; • Impact of contractors on the community, such as conflict in access to jobs or access to supply – chain opportunities and the implications on household spending; • Specific impacts of conflict (labour disputes, community conflict, and so on) on children’s well – being and how to tailor programmes to mitigate such impacts. Prioritising specific child rights issues for engagement may be determined by the results of a materiality assessment or conducted as part of a human rights impact assessment. Engagement may also be based on the results of assessments to obtain information about specific child rights risks or opportunities, as well as inform the necessary actions to address them. Depending on the

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o­ bjective for engagement, a company can prioritise issues for engagement based on two dimensions: 1.

2.

For respecting children’s rights: an evaluation of the severity of adverse impacts on children as rights holders. ‘Severity’ is defined in terms of the scale, scope and irremediable character of impacts. It is intended not as an absolute concept, but relative to any other human rights impacts that the company has identified.5 For supporting children’s rights: an appraisal of the level of opportunity to advance children’s rights, aligned with core business competencies, such as products, services and influence with business partners and other stakeholders.

The severity of adverse impacts (respect) and the level of opportunity to advance children’s rights (support) can be assessed with information collected on the following criteria:6 • • • • •

Number of children likely to be affected; Length of impacts (short-, medium- or long-term); Nature of impact (direct, indirect or cumulative); Likelihood that the impact will occur; Gravity or consequences of the negative impact (risk of death, violence, ­exploitation or ill health, both mental and physical); • Whether there is a multiplier effect that increases positive or negative ­impacts on any group of children; • Whether particularly disadvantaged children are likely to be more affected positively or negatively; • Capacity to cope with or remediate potential negative impacts through ­realistic, set – in – advance mitigation measures. 3.4 Levels of Engagement In preparing for engagement, it is important to consider what level of engagement is most appropriate for the company. Stakeholder engagement on 5 This definition of ‘severity’ is based on the commentaries for principles 14 and 24 of the United Nations Guiding Principles on Business and Human Rights. See Office of the High Commissioner for Human Rights Guiding Principles on Business and Human Rights (2011) 15–26. 6 European Union & United Nations Children’s Fund Module 5: Child Impact Assessment, euunicef Child Rights Toolkit: Integrating Child Rights in Development Cooperation (2014).

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c­ hildren’s rights is useful for companies depending on the level of severity or opportunity of its impact on children’s rights, the size of the enterprise, and the nature and context of the operation.7 Not all companies will have determined the relevance or materiality of child rights issues to the business, nor do they consider children as a priority stakeholder group because of the minimal risk of potential impact on children. Other companies may have identified child rights issues as material, but do not consider them a priority due to limited potential or actual impact, or do not have plans to take specific actions on the issue. Others simply might not have the capacity for direct engagement with children or child rights stakeholders. Companies for which direct consultation is not currently a priority or not possible can use information that is already publicly available. Small and medium-sized enterprises, for example, will need to weigh the resource implications of engaging specific stakeholder groups against their level of impact.8 Companies with operations, locations or products/services that pose severe child rights risks or, conversely, present significant opportunities to advance children’s well-being will want to consider meaningful consultation with stakeholders on children’s rights. Consultation is necessary when a company is planning on conducting a human rights impact assessment and is seeking to incorporate perspectives on child rights impacts. Consultation is particularly relevant for companies that are seeking to change their business approach to a particular child rights issue and would benefit from consulting affected for their input. Such consultation would entail a two-way dialogue whereby the company solicits stakeholder perspectives, listens and responds to their concerns, integrates that information into internal decision-making processes, and then re-engages with stakeholders on how their concerns were taken into account.9 Case Study: Securing Social License to Operate through Community Engagement, Including Child Outreach Canadian mining company Sherritt International’s Ambatovy nickel mine and refinery is the largest industrial complex in Madagascar. When Sherritt was

3.5

7 Office of the High Commissioner for Human Rights, Guiding Principles on Business and ­Human Rights (2011) 18. 8 Office of the High Commissioner for Human Rights The Corporate Responsibility to Respect Human Rights: An Interpretive Guide (2012) 43. 9 Shift & Institute for Human Rights and Business ict Sector Guide on Implementing the un Guiding Principles on Business and Human Rights (2012) 38.

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preparing for construction in 2007, local communities were optimistic about the economic benefits and curious about mining and what Sherritt was doing. There was also considerable suspicion, and rumours and misinformation were circulating. Moreover, Madagascar has a high population under the age of 20. Because Sherritt’s presence in the community would extend for over 30 years, it was crucial to build a lasting relationship with the community, raise awareness of its activities, and understand community perspectives. Children represent the company’s future workforce and supply chain, making them critical stakeholders in the company’s future success. Sherritt undertook a broad-based community outreach initiative, targeting the general population, including children. The company identified known credible institutions and groups to approach for consultation and to identify other relevant stakeholders. Part of the initiative entailed engaging teachers, parents and community leaders to build a level of trust with the stakeholders, before working with schools and youth organisations.10 Child engagement sessions were led by trained Malagasy employees from the community relations, environment and communications teams. Sessions, which took the form of small and large group visits and even tours of the mine and refinery, would start with an oral presentation containing visuals, including videos, photos, comic books, posters and music. Sessions were interactive so that information about the company was presented and children were encouraged to ask questions and share perspectives. 4

Who Should be Engaged?

4.1 Identifying Stakeholders Engagement on children’s rights can be carried out with a broad range of stakeholders. Stakeholders who are consulted on broader human rights issues can also be consulted for their perspective on children’s rights. For most companies, treating children as a key stakeholder group or understanding how business operations impact them will not require consulting with children directly. Rather, clarity on child rights impacts can often be obtained from adults who have close contact with children or expertise in children’s rights. Companies should first consider engaging with child rights advocates who can provide information to assess the situation of children’s rights in a 10

European Investment Bank Ambatovy Nickel Project, Madagascar, available at http:// www.eib.org/infocentre/press/news/topical_briefs/2007-september-01/ambatovy-nickel -project-madagascar-topical-brief.htm?lang=en (accessed 17 January 2016).

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particular context. In some cases, these advocates have direct access to children. Such advocates can be organisations or individuals that meet one or more of the following criteria: • Have knowledge of children’s issues (understanding of a specific issue and/ or local context); • Are recognised by the affected community where children’s rights are impacted as able to speak on behalf of children’s experiences and/or views; • Represent the best interests of children in terms of their specific needs, capabilities and rights (organisations or individuals that have a professional responsibility to represent the best interests of children); • Have some form of training or can demonstrate skills that enable them to understand and represent children’s concerns, needs and rights. Companies can also engage with individuals who do not necessarily have expertise on child rights, but because they are in close contact with or in the vicinity of affected children, they are able to provide insights into children’s behavioural patterns and the behaviour or activities of others that might have positive or negative impacts on children. Companies will need to identify stakeholders by either the specific child rights issue at hand or their ability to speak to a broad range of child rights issues. This step involves identifying the relevant groups, organisations and individuals that may offer the company multiple perspectives on the issue. To do this, companies will need to look beyond the most obvious stakeholder groups to include groups that are indirectly affected through their products and services or business relationships along the value chain. The identification of stakeholders can be done through a combination of desk research and relying on existing networks of stakeholders to identify local organisations and/or individuals. Consulting organisations or individuals that already have an established relationship with the company – and a solid understanding of the business and its core impacts – might provide insightful recommendations for further engagement. Various types of organisations and individuals can act as child rights stakeholders. For example, government entities and non-governmental organisations (ngos) that work with children or youth organisations may be able to provide useful information on particular child rights issues. Social service organisations or individuals such as health-care professionals, teachers or social workers who work directly with children can be important sources of information. Parents or company personnel can also provide key insights about children’s welfare and behavioural patterns.

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It is important to note that children are not a homogeneous stakeholder group. As with other stakeholder groups, companies will need to determine how subgroups of children are affected differently or with more severity, and how children may be affected at different levels of the value chain. Business impacts can be more severe on child groups made vulnerable by industry activity. Such insights can be gathered through desk-based research and discussions with stakeholders. An initial stakeholder mapping can be useful for identifying which groups of children are likely to be affected and whether they should be included in the engagement process. Companies can consider subgroups of children based on factors such as gender, age or socioeconomic status. 4.2 Prioritising Stakeholders The next step in determining which stakeholders to engage involves prioritising the initial list of organisations and/or individuals to understand who they are and what they might expect in an engagement with the company – for example, expressing opinions or grievances on a particular issue, participating in open and honest dialogue, requesting specific operational changes or adherence to performance standards or guidelines, or engaging in a formal partnership. The following criteria can assist companies in evaluating and prioritising a target group of stakeholders for engagement on child rights issues as part of their existing stakeholder selection processes: • Legitimacy: How legitimate is the stakeholder’s claim for engagement on child rights or a specific child rights issue? Does the stakeholder have broad support from or acknowledged expertise within the community? In certain scenarios, does the stakeholder have consent to represent children or the community? • Willingness: What is the stakeholder’s willingness to engage with business? Is there sufficient overlap between the objectives and concerns of the company and the interests of the stakeholder? • Knowledge: Does the stakeholder have an understanding of how children are affected by a particular impact? Do they have knowledge that could be helpful to the company and community? • Influence: Does the stakeholder have regional, national or international influence on public debate on this issue? If so, with whom does the stakeholder hold sway, for example, with other companies, ngos, consumers or investors? • Contact with children: Does the stakeholder have access to children’s viewpoints and opinions? Does the stakeholder have first-hand knowledge of

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children’s experiences? Can the stakeholder accurately represent children’s wishes and interests? Once the company has identified which criteria to use as the basis for its stakeholder selection, it can prioritise stakeholders using a matrix to visualise the links to engagement objectives and prioritise groups or individuals depending on their relevance. This prioritisation will depend largely on the topic or issue and the local context. It is also important for stakeholder prioritisation to be refreshed regularly – for example, according to ongoing human rights impact assessments, at different stages of the project life cycle, when a company enters a new market or geographical area, or when a new product or service is launched. A company would complete the matrix with possible stakeholders, the issues on which it would like to engage, and the selection criteria it will use to prioritise stakeholders. Next, it would match the stakeholders with the issues and selection criteria. The finalised matrix will help the company decide which stakeholders to engage. 4.3 When to Consult Children Directly In most scenarios, companies should consult child rights advocates to understand their perspective on the impacts on children. Only in limited circumstances would companies find it necessary to consult with children directly. Direct consultation with children can do more harm than good if not carried out appropriately and ethically. Triangulation with other sources of information from child rights advocates or key adult informants – such as police, company personnel, community leaders and health workers – can often yield sufficient information. However, adults do not always have sufficient insight into children’s daily lives to be able to provide comprehensive or fully accurate information for a company’s assessment process. Disaggregating children’s perspectives from the community or household level is important, because children may be silenced within the family or their views not solicited or understood because of the children’s age or gender. For example, evidence shows that parents may have little awareness of children’s online activities, and therefore may be unaware of the impacts related to advertising, grooming, gaming and social media.11 The differential impacts of a product or service on children’s lives may not be recognised. There may also be situations where consent is needed from 11

unicef Innocenti Research Centre Child Safety Online: Global Challenges and Strategies (2012) 7.

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key stakeholders, including children, and companies cannot assume their agreement is covered through consent of their parents or guardians. Children can offer unique perspectives and opinions on their direct experiences. Depending on the issue and need for engagement, business assessments and decisions that are informed by children’s opinions can be more relevant, effective and sustainable. Children must be consulted only if necessary, and companies should consider the following question: Will the engagement benefit children? Direct consultation with children always requires prior engagement with other child rights stakeholders and experts who have an understanding of child rights issues. These resources can help companies identify facilitators who have the training and background to apply child protection standards during direct consultations with children. Engagement on children’s rights should be sincere. Before engagement, companies should clarify their motivation and specific issues for engagement, setting out a vision that defines both the objectives for the business and the benefits for children. When consulting children directly, companies should identify specific topics for consultation, rather than expect children to provide input on focus areas for sustainability or human rights strategy. Companies should consider the following questions internally before pursuing direct consultation: • Does the company have a genuine motivation to engage (for example, for the purpose of understanding impacts and feeding into a sustainability strategy versus for the purpose of tokenism or publicity) and intention to act upon outcomes? • What are the specific issues on which the company will consult children? • Will the engagement with children be well-informed and ethical (for example, children are treated with respect and without discrimination, they are fully aware of the purpose of the engagement and how the findings will be used, their engagement is voluntary at all stages, and due weight is given to their contributions)? • Does the company have the capacity and time to effectively engage with children and work with the relevant organisations to carry out meaningful consultations? Will engagement with children be useful to the company? • Will there be a return to the stakeholder for engaging, in terms of company action on an issue or improved outcomes for children? • Will the engagement benefit children? Other rights holders? Depending on the business sector and objective for engagement, companies can determine whether to consult with children directly.

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Case Study: Engaging a Range of Child Rights Stakeholders in a Human Rights Impact Assessment at the Community Level Nomogaia, a non-profit organisation that builds and tests tools for corporate human rights due diligence, conducted a human rights impact assessment of uranium mining and production company Paladin Energy’s operations in Malawi.12 Children were identified as a key rights holder group in a number of areas, including health, environment, labour, education, land acquisition, security and social investment programmes. As part of the assessment, Nomogaia conducted interviews with youth and a range of stakeholders, including Ministry of Education personnel, teaching staff, clinicians and parents. Nomogaia also interviewed relevant mine personnel such as members of the security, community relations and environmental monitoring teams. Youth and children were engaged in group settings at school to obtain their perspectives on the community and the quality of schooling, and their aspirations and fears. The assessment revealed improvements in school facilities, the quality of education, maternal and infant health care, hiv/aids services and youth employment. However, the assessment also revealed negative impacts on children’s rights. The wealth in the mine area attracted criminal gangs, who were hiring children to syphon fuel from company trucks. Additionally, mine operations and trucks were generating dust near the local primary school. As a result, the company facilitated an intervention with local families and law enforcement in a series of efforts to stem criminal activity and protect children from both criminal elements and the risks of fuel syphoning. Paladin also partnered with a neighbouring coal mine to install speed bumps in front of the school, reroute the road away from the school, and monitor air quality. 4.4

5

How to Consult Directly with Children

5.1 Ethical Considerations Direct consultation with children requires particular sensitivities and, like engagement with other groups, necessitates attention to any barriers to participation, including age, gender, language, cultural beliefs and norms. It also requires additional caution or capacity in ensuring that children do not experience exploitation, harm or retaliation as a result of participation in the process. 12

Nomogaia Kayelekera Hria Monitoring Summary (2015), available at http://nomogaia .org/wp-content/uploads/2015/10/KAYELEKERA-HRIA-MONITORING-SUMMARY10-5-2015-Final.pdf (accessed 17 January 2016).

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When children are involved, companies should also be mindful of actual or perceived power imbalances. Consultation requires the support of a neutral, trusted individual to facilitate the engagement process. Moreover, direct consultations with children must be conducted with respect for all children’s rights, including their right to privacy, protection from any form of violence or abuse, and freedom of thought. The overarching considerations when consulting directly with children are as follows: • Participation should be voluntary, with informed consent in written or oral form from the child, and parents and caregivers. • Consultation topics should have a clear purpose and focus on specific issues that are relevant to children’s lives and concerns. • Children’s time is precious, and engagements should fit in with their daily routines. • Child rights stakeholders should also be consulted throughout the process. • Companies should rely on expert third-party facilitation, regardless of the chosen approach. • Consultations should be part of a wider long-term approach to stakeholder engagement. • Child safeguards and confidentiality should be ensured throughout the process. • Consultations should be carried out with respect for the cultural practices, beliefs and norms of each community or group. These considerations are based on accepted child rights principles on the involvement of children in any research process, specifically the ‘Basic Requirements for Effective and Ethical Children’s Participation’, which were adopted into the Committee on the Rights of the Child’s General Comment on article 12 of the crc.13 They have been adapted for a business context, with respect to human rights and due diligence, for guidance on stakeholder engagement for companies. Once companies have determined the relevance of direct consultations with children, it is recommended that they review the following steps to ensure appropriate considerations are taken into account before, during and after the consultation. 13

Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009) CRC/C/GC/12.

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Before consulting with children, companies should conduct research to adequately understand the background and local context of the child rights risks and opportunities. Once the company has developed an understanding of the local context and confirmed the value of consulting children directly, it should work with a third-party facilitator and the local community to plan for the actual consultation, with consideration given to child protection, location, accessibility, timing, logistics and facilitation. During the invitation phase, companies should work with the facilitator to ensure proper outreach to child participants and ensure that children are adequately informed of the process. During the consultation with children, companies will need to work with the third-party facilitator to ensure participants are treated with respect and that the engagement is conducted in a manner that takes into account potential barriers to effective engagement. Companies must ensure that the staff leading consultations with children have the appropriate skills and experience. While companies often outsource impact assessments and stakeholder engagement to consultancies, it is imperative that direct consultations are facilitated by individuals capable of interacting with children in these situations on a basis that respects children and protects their rights. A good facilitator will meet the following criteria: • willingness and ability to create a safe space for children to express their views; • awareness of and respect for children’s rights; • commitment to treating every child without discrimination on any grounds; • access to the training and tools needed to use participatory and experiential techniques with children; • experience in facilitating discussion groups directly with children and young people; • ability to work effectively and confidently with children of different ages and abilities; • availability to address and coordinate child protection issues during the participation process; • capacity to report any cases or indications of child abuse or other concerns that arise during the consultation and require immediate referral to the relevant authorities, with the safety and the protection of the child in mind; • acceptance of the community and stakeholders involved; • knowledge of the local language; and • an understanding of the purpose and topic of the data collection.

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Once the consultation has taken place, the company should analyse the results and take steps to integrate the outcomes. It should then develop an action plan that translates into action the findings, insights and perspectives gained from the engagement. Once the company has taken steps to act upon the information gathered through the consultation, it should communicate the actions to the participants and other key stakeholders involved, with the support of the facilitator. Research with children will typically use qualitative methods. Common approaches include focus groups and semi-structured interviews, but consultation can also include online engagement or written surveys. Case Study: Child Consultations in Kenya on Sexual Exploitation of Children in Tourism Kuoni, a global travel and destination management services company based in Switzerland, conducted its first human rights impact assessment in Kenya in 2012, with a special focus on violations of children’s rights linked to the commercial exploitation of children in tourism. Focus group meetings were held with children who were exploited in the sex industry. The guiding questions for these interactions sought to establish the casual and systemic factors leading to children’s involvement in sex work in the tourism sector; how participants perceived the industry and government to be responding; and what needed to happen to address the situation in a meaningful way. The interactions were facilitated by an experienced local ngo, including a social worker who advised on an appropriate approach and language. The consultations revealed that the commercial sexual exploitation of children by tourists in Kenya is perpetuated by poverty and socioeconomic marginalisation, including exclusion from employment and training opportunities in the tourism sector. Children who have been exploited in the sex industry may lack access to alternative income-generating activities. They are often victimised by the police, and societal perceptions have led to a failure to recognise sexual abuse and exploitation as an issue – particularly in how it affects boys. Engagement outcomes of this assessment fed into a human rights action plan for 2013–2014, which was implemented by Kuoni and Private Safaris, its subsidiary in Kenya, in collaboration with relevant local stakeholders.

5.2

6 Conclusion The company due diligence process allows a company to understand and plan its business and human rights approach in general, while unicef guidance in this context focuses specifically on the impact of business on children’s rights.

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Engaging stakeholders can help companies identify and assess actual or potential adverse impacts on children and, therefore, can be a crucial step towards improving respect for children’s rights. Making strategic use of stakeholder engagement can also allow a company to prevent or alleviate child rights impacts, or grievances that populations might have regarding certain company practices. Companies can engage a wide range of stakeholders, such as professionals who have experience in addressing child rights impacts, governments and youth organisations, depending on the issues and actors available, and the local context. To avoid tokenism or potential harm to children, children should be consulted only if no other stakeholder can provide sufficient insight into children’s reality. If a direct consultation is deemed necessary, ethical considerations should be considered to avoid harming children. Bibliography Books/Manuals

Boyden J & Ennew J Children in Focus: A Manual for Participatory Research with Children (1997) Stockholm: Save the Children Sweden, available at http://­resourcecentre .savethechildren.se/content/library/documents/children-focus-manual-participa tory-research-children (accessed 14 January 2015). European Union & United Nations Children’s Fund Module 3: Child Participation, EUUNICEF Child Rights Toolkit: Integrating Child Rights in Development Cooperation (2014) New York: UNICEF Programme Division, available at http://www.unicef.org/ eu/crtoolkit/toolkit.html (accessed 14 January 2015). European Union & United Nations Children’s Fund Module 5: Child Impact Assessment, EU-UNICEF Child Rights Toolkit: Integrating Child Rights in Development Cooperation (2014) New York: UNICEF Programme Division, available at http://www.unicef .org/eu/crtoolkit/toolkit.html (accessed 22 February 2016). Graham A, Powell M, Taylor N, Anderson D & Fitzgerald R Ethical Research Involving Children (2013) Florence: UNICEF Office of Research – Innocenti. Lansdown G & O’Kane C A Toolkit for Monitoring and Evaluating Children’s Participation: Booklet 4: A 10-Step Guide to Monitoring and Evaluating Children’s Participation (2014) London: Save the Children, available at http://www.savethechildren.org.uk/ resources/online-library/toolkit-monitoring-and-evaluating-childrens-participa tion (accessed 10 January 2015). Laws S & Mann G So You Want to Involve Children in Research? A Toolkit Supporting Children’s Meaningful and Ethical Participation in Research Relating to Violence against Children (2004) Stockholm: Save the Children, available at http://images

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.savethechildren.it/f/download/Policies/st/strumenti.pdf (accessed 14 January 2015). Office of the High Commissioner for Human Rights The Corporate Responsibility to Respect Human Rights: An Interpretive Guide (2012) Geneva and New York: United Nations, available at http://www.ohchr.org/Documents/Publications/HR.PUB.12.2_ En.pdf (accessed 15 January 2015). Save the Children UK Practice Standards in Children’s Participation (2005) International Save the Children Alliance, available at http://www.savethechildren.org.uk/ resources/online-library/practice-standards-children%E2%80%99s-participation (accessed 15 January 2015). Shift & Institute for Human Rights and Business ICT Sector Guide on Implementing the UN Guiding Principles on Business and Human Rights (2012) European Commission, available at http://ec.europa.eu/enterprise/policies/sustainable-business/files/­csrsme/csr-ict-hr-business_en.pdf (accessed 15 January 2015). United Nations Children’s Fund Children as Advocates: Strengthening Child and Young People’s Participation in Advocacy Fora (2010) UNICEF Handbook, New York, available at http://www.unicef.org/southafrica/SAF_resources_childrenadvocates.pdf (accessed 15 January 2015).

Reports

Ólafsson K, Livingstone S & Haddon L How to Research Children and Online Technologies? Frequently Asked Questions and Best Practice (2013) London: EU Kids Online and London School of Economics and Political Science, available at http://www.lse .ac.uk/media@lse/research/EUKidsOnline/BestPracticeGuide/FAQ/FAQsReport .pdf (accessed 13 January 2015). Shift Bringing a Human Rights Lens to Stakeholder Engagement: Shift Workshop Report No. 3 (2013), available at http://www.shiftproject.org/publication/bringing -human-rights-lens-stakeholder-engagement-shift-workshop-report-no-3 (accessed 14 January 2015). UNICEF Innocenti Research Centre Child Safety Online: Global Challenges and Strategies (2012) Florence, available at http://www.unicef.org/pacificislands/ict_eng.pdf (accessed 15 January 2015).

Miscellaneous

Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009) CRC/C/GC/12, Geneva: United Nations, available at http://www .refworld.org/docid/4ae562c52.html (accessed 14 January 2015). Office of the High Commissioner for Human Rights, Guiding Principles on Business and Human Rights (2011) New York and Geneva: United Nations. United Nations Children’s Fund, Children’s Rights and Business Principles (2012) Geneva.

chapter 38

Socio-Legal Defence Model: Realising Children’s Rights Benoit van Keirsbilck and Anna D. Tomasi Abstract There are no rights, and in particular no children’s rights, without mechanisms that guarantee they are observed, and adequate controls to ensure their application. Any state that has ratified international laws and standards in terms of human rights must establish the proper mechanisms for implementing these rights. In that regard, SocioLegal Defence Centres, among others those established by Defence for Chilren International, represent an interesting tool to help children access justice, exercise their rights and obtain remedies when their rights have not been fully respected. Using a sound methodology, these centres work at an individual level (providing legal and social support to children and their families) as well as a collective level, in order to build a child-friendly society that respects children’s human rights. sldcs work to achieve structural changes within society generally and the child protection and justice systems in particular.

1 Introduction Defence for Children International (dci) is an international non-governmental organisation that has been promoting and protecting children’s rights at the global, regional and local levels for the last 35 years. Established in 1979 (­International Year of the Child), dci was initially involved in the drafting of the United Nations Convention on the Rights of the Child (crc). dci went on to gain ecosoc status in 1993, providing the organisation with various capacities within the different un agencies. dci currently has over forty national sections worldwide – in Africa, the Middle East, Asia-Oceania, America and Europe. Since 2005 dci has prioritised juvenile justice in its work at the international, regional and local level, paying special attention to monitoring the application of the guiding principles of the crc, particularly General Comment No. 10 on children’s rights in juvenile justice. dci protects children’s rights in juvenile justice through advocacy, lobbying and research and lobbying as well as direct interventions.

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Through its national sections worldwide, dci has found that Socio-Legal Defence Centres (sldcs) are effective in providing children with the opportunity­ to access justice and obtain remedies. These Centres pro-actively promote and reactively protect the human rights of the child as codified in the crc, particularly its fundamental principles: non-discrimination; best interest of the child; right to life, survival and development; and child participation. In this chapter, dci presents a general model of sldcs that is extrapolated from the many national centres it operates. This model can be transplanted into different cultural contexts worldwide, turning children’s rights into realities. 2

The Work of a Socio-Legal Defence Centre (sldc)

A sldc is a place where children and youths, as well as adults who are confronted with children’s rights violations, can walk in the door to tell their story and be assured of help and information. sldcs ensure that children take a leading role in their own lives and act not merely as passive subjects of decisions concerning themselves. In such a way, sldcs put into action the inclusionary and best-interests principles.1 At an individual level, a sldc informs a child of his or her human rights and ensures that he or she can exercise such rights effectively. A sldc provides the assistance of a legal professional (a lawyer or paralegal) who is a specialist in the rights of the child and offers the service free of charge (the professional is paid by the legal aid system). In such way, children can actively participate in the decisions concerning them, both amicably and legally, and be informed about all aspects of their situation (the legal procedure, the role and the function of the various actors involved in the legal proceedings, and so on). The child can then make informed choices and say how the or she would like to be defended, becoming the master of his or her own defence (for example, whether to plead guilty or not guilty). As far as possible a sldc guarantees parents’ involvement so that they can fulfil their responsibility to protect and educate their child.2

Best-interests principle Defining the best interests of the child remains subjective as with each child variables depend on internal (physical and psychological) and external ­(lifestyle and personal family circumstances) factors. 1 As enshrined in arts. 3 and 12 crc. 2 Arts. 3 and 5 crc.

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sldcs provide a holistic framework to help ensure that the best interests of the child are taken into account by decision-making bodies and authorities. Deciding the best interests of the child involves a process of evaluating and balancing elements with the support of a multidisciplinary team and direct child participation. There may be an issue when the child does not want to participate. It must be noted that the child’s participation is voluntary. This means that the staff at the Centre try to provide the best service to the child, aiming to build the necessary trust relationship in order to effectively help the child enact his or her rights. Accessibility is also a concern, as children in vulnerable situations will encounter difficulties in approaching the Centres. It is therefore necessary that the Centres take a proactive approach in reaching out to marginalised groups.

Inclusionary principle This principle involves considering the child as an active subject and rightsholder and not merely an indirect recipient. However, participation is determined according to the child’s capacities. Article 12 of the crc states the right of the child to ‘express views freely in all matters’. This right to be heard entails the obligation to listen – which the sldc model ensures, along with facilitating the child’s active and adequate participation, which ultimately leads to further empowerment and ownership of his or her human rights.

At the collective level, the sldc model helps to build a child-friendly society that provides protection and possibilities of empowerment for children, along with a system of national laws and services that respect children’s human rights. The sldc model promotes structural social changes by promoting the adoption of laws, policies and practices that are specific to the human rights of children and respect international laws and standards. Furthermore, sldcs, through advocacy based on their practice, formulate proposals and build capacity for improving the situation of children in their social environment, appealing to authorities when children’s rights are not fully respected. They strengthen the capacity of authorities to implement basic human rights for the benefit of all children. sldcs also contribute to reporting systems within the framework of various international human rights mechanisms that monitor the implementation of children’s rights, such as the United Nations ­Committee

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on the Rights of the Child and the Universal Periodic Review, and other human rights mechanisms at the regional level. Through leading cases and landmark decisions, sldcs contest child rights violations, obliging authorities to fulfil their obligations, creating important precedents and gradually improving the situation of children.

3

Case advocacy

Social advocacy

sldcs receive individual complaints from children, working as a reference-point for the judicial system. These centres follow a ‘child-incontext’ approach, with case management which goes beyond the legal sphere. The multidisciplinary team at sldc proves crucial in gaining more holistic knowledge of the child and applying the best-interests and inclusionary principles to build a just case and empower the child.

As a centralised and child-focused service, sldcs are in the best position to inform and educate government and the general public (children and adults alike) on children’s rights. sldcs lobby for the general amelioration of policies, laws and practices inherent to child protection, identify violations (policy advocacy), and lobby for nonexistent services and entities that are required (systematic advocacy).

Formative Elements

sldcs are run by dci national sections, which are local grassroots ­nongovernmental organisations and are thus independent entities. As dci ­sections are usually decentralised, sldcs often manage to reach rural zones and provide accessibility to the more marginalised groups (for instance, children not enrolled in school). The sldcs run by dci national sections around the world have common characteristics from which we can extrapolate a basic model which can be transplanted into different contexts worldwide. The work of sldcs consists in actively offering children direct social-legal support, including information, referrals to other service providers, and legal advice and representation, including in court. sldcs help children assert their human rights when these are threatened or violated. Essentially, sldcs are the missing link in ensuring that children receive direct and immediate support, while promoting structural improvement through the social embedding of children’s human rights.

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Team members in a sldc typically include social workers and lawyers, a­ lthough educators and others can also be part of the team to ensure a more comprehensive approach. The team is specifically trained in children’s rights, juvenile justice and other legislation applicable to children, as well as child protection and welfare. Training is continuous and practices shared with other professionals working in the same area. Beyond legal advice, mediation and counselling, a referral pathway is provided whereby children may be referred to other services, depending on their specific needs (health, education, and so on). It is crucial that there is coordination between all actors involved, and that efficient, effective action is ensured. It must be noted that sldcs also serve as a preventative entity: ­empowering children through the provision of information and education on their human rights is an important component of their work, as well as ensuring effective child participation. Children are welcome in these centres regardless of whether their human rights have been violated. In fact, awareness-raising on children’s rights is also part of the Centres’ activities. sldcs also work to achieve structural changes within the justice system. All justice systems should have accessible and child-friendly procedures that observe and protect children’s rights and provide children with information and legal assistance while guaranteeing their best interests and participation. sldcs also advocate for systematic training in children’s rights for ­professionals such as judges, police officers, lawyers, civil servants and community leaders. sldcs are often the first to identify systematic violations of children’s human rights, raising public awareness and seeking to counter such violations. They conduct inquiries, publish reports, pursue strategic court cases, provide advocacy services, and lobby for the necessary changes to laws and policies. 4

Child-Friendly Justice

Although sldcs provide appropriate and just assistance to children if and when their human rights are violated (and even in preventing such violations), the corresponding justice system is often not in harmony with such a comprehensive child-rights approach. To this end, sldcs make use of the Guidelines on Action for Children in the Justice system in Africa, which were developed in the context of the Global Conference on Child Justice held on 7–8 November 2011 in Kampala (Uganda) and organised by Defence for Children International (dci) and the African Child Policy Forum (acpf). They aim to guide law reform to fully implement international juvenile justice standards and coordinate actions by various

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r­ ole-players in formal and informal justice systems in Africa. This document has also been adopted by the African Committee of Experts on the Rights and Welfare of the Child (acerwc) of the African Union. In addition, sldcs refer to the recently adopted Guidelines on ­Child-Friendly Justice of the Council of Europe for the establishment of justice systems responding to the specific needs of children, with a view to ensuring children’s effective and adequate access to and treatment in justice. Such instruments encourage the creation of a justice system that works with and for children and balances, appropriately, the work of sldcs. A child-friendly justice system guarantees child participation and ensures that children are consulted and heard in all proceedings involving or affecting them, and that their best interests are of primary consideration. Professionals involved are specifically trained on children’s rights and cooperate closely to ensure multidisciplinary, appropriate assistance. The human rights of children are to be secured without any form of discrimination and the rule of law principle is to fully apply to children as it does to adults. Elements of due process (legality; proportionality; presumption of innocence; fair trial; legal aid; access to independent and impartial complaint mechanisms; and so on) are guaranteed, and by no means minimised on the basis of the child’s best interests. Information and advice on their human rights, the justice system, measures available, and similar issues, are provided to children involved in the justice system. Confidentiality is guaranteed with regard to court records and documents containing personal or sensitive information about the child. 5 Conclusion The guiding principles of the crc include non-discrimination (art. 2); adherence to the best interests of the child (art. 3); the right to life, survival and development (art. 6); and the right to participate (art. 12). These principles r­ epresent the underlying requirements for any and all other rights to be r­ ealised. To such an extent, sldcs realise the human rights of the child in a concrete, ­effective manner. The multidisciplinary and child-in-context approach of sldcs is ­appropriate, considering the status of children as dependent and therefore vulnerable individuals in the process of developing their capacities. Another important aspect of the sldc model is its independence from the state, which proves crucial in lobbying for systematic reform in social, legal and policy actions concerning children. sldcs are the bridge between rights rhetoric and actual practice, and should be widely endorsed at international level, particularly through the work of the United Nations Committee on the Rights of the Child.

chapter 39

Advancing Children’s Rights through Parent Support Services Pia M. van den Boom Abstract Celebrating 25 years of the crc, this is a critical moment to bridge the gap between parental rights as defined by the crc and the reality of parents in low-income countries. While the crc takes a clear stance on the role of parents and obliges States Parties to support parents in the implementation of child rights, governments tend to prioritise children’s issues without considering the role of parents in addressing them. Progress has been made over the past 25 years, for example in Kenya, but policies and programmes to support parents are generally under-resourced and do not respond to the broad range of support services to which parents are entitled. As a result, many parents are struggling to assume their responsibility as primary caregivers and protectors of their children and millions of children are still subject to violence and other child rights violations on a daily basis. This chapter calls upon the international community to prioritise parent support services on the child rights agenda. It urges the Committee to become more explicit about States Parties’ duty to provide parent support services, and calls upon governments and civil society to include parent support services as an integral part of child rights programming.

1 Introduction Twenty-five years ago, the United Nations General Assembly adopted the Convention on the Rights of the Child (crc). Over the period since the crc was first officially mooted in the late 1970s, concerns were expressed about the effects that the crc could have on parental authority. People feared that the crc would harm the right of parents to determine the moral and spiritual development of their children, and some even referred to the crc as ‘a parent’s nightmare’.1 Child rights experts generally consider these concerns unfounded 1 Cantwell N ‘Children’s rights in relation to their family’ in Alen A et al. (eds) The un Children’s Rights Convention: Theory Meets Practice (2007) 389–400.

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as the crc explicitly grants responsibilities and protection to parents. However, looking back at 25 years of the crc, one could argue that the opposition of parents was partially justified – not because of the content of the crc, but because of the way governments and civil society have been implementing it, especially in low-income countries. This chapter calls upon the international community to prioritise parent support services on the child rights agenda. It urges the Committee on the Rights of the Child to become more explicit about States Parties’ duty to provide parent support services, and calls upon governments and civil society to include parent support services as an integral part of child rights programming. Sections one and two highlight the importance of parent support services, as described by the crc. Section 3 elaborates on the way governments and civil society engage with parents when implementing the crc, illustrated by the case of Kenya in section four. Finally, Section 5 discusses the way forward for advancing children’s rights through parent support services. Note that this chapter does not argue for the rights of parents to be weighted more heavily than those of the child, especially not where the conditions of family life put the child at risk. Rather, it calls for more attention to article 18.2 of the crc to increase the number of parents that have access to the services and opportunities that are theirs by right – but not always theirs in reality. 2

Why Parent Support Services?

Children depend on adults to safeguard their rights, especially in their early years. Parents2 play a key role in the physical, social and mental development of their children. The family forms the basic protective unit for children. It is within the family that children are taught morals and responsibilities that enable them to become active citizens, healthy adults and effective parents themselves. Therefore parenting – the processes of promoting and supporting the development and socialisation of a child – is fundamental for upholding children’s rights.3 Parenting can be a challenge in every society and is often accompanied by questions and uncertainty, especially for parents in low-income communities who are raising their children under challenging circumstances, such as 2 In this paper, the terms ‘parent’ and ‘parenting’ are not limited to the ‘nuclear’ family, but include all adults who provide care and protection to children in their homes. 3 Richter LM & Naicker S A review of published literature on supporting and strengthening childcaregiver Relationships (Parenting) (2013).

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­poverty and exposure to violence and health issues like hiv/aids. Traditional support structures and practices in many low-income countries are slowly breaking down, reducing the social support available to parents. For example, in sub-Saharan Africa, state provisions for vulnerable families are generally weak and parents rely on the extended family and community as the principal form of support.4 This contributes to the struggle of parents to assume responsibility as primary duty-bearers in the implementation of children’s rights. The following examples reveal the scope of the problem: • Despite progress on the first Millennium Development Goal, poverty still hinders the ability of millions of parents to guarantee children their basic rights to survival, growth and development.5 • Violence against children continues to be a global phenomenon and, in many countries, parents are reported as the most common perpetrators.6 • Globally, 168 million children are in child labour because of their parents’ beliefs about education as well as the significant barriers parents face to send their child to school, such as poor education systems, discrimination and exclusion.7 The complexity of parenting in today’s society, and its effect on children’s rights, raises the need for provision of parent support services at a global level and especially in low- and middle-income countries. Globally there is strong evidence for the effectiveness and efficiency of parent programmes to ­address these issues. However, most evidence derives from high-income countries and it therefore generates little incentive for governments and donors in ­low-income settings to invest in parent support services.8 Another challenge is the broad range of services that falls within parent support across different settings. Parent support is often used interchangeably with ‘family support’, ‘parent education’ and ‘parent training’, while these terms 4 Inter-agency Group on Child Protection Systems in Sub-Saharan Africa ‘Strengthening child protection systems in Sub-Saharan Africa’ Working Paper (2012). 5 United Nations The Millennium Development Goals Report 2014. 6 Covell C & Becker J Five Years On: A Global Update on Violence against Children A report from the ngo Advisory Council for follow-up to the un Secretary-General’s Study on Violence Against Children (2011). 7 International Labour Office (ilo) Marking progress against child labour: Global estimates and trends 2000–2012 (2013). 8 Knerr WG, Gardner F & Cluver L Parenting and the prevention of child maltreatment in lowand middle-income countries: A systematic review of interventions and a discussion of prevention of the risks of future violent behaviour among boys (2011).

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actually connote slightly different matters. Most parent support corresponds largely to parent training programmes that address family and individual factors: parents-child interaction, parents’ knowledge of child development, how parents view themselves as caregivers and people, and their relationships with their partners.9 It is this type of parent support that has the strongest evidence base of its effectiveness, especially in high-income settings. However, parent support also entails services that aim to tackle the underlying causes of parenting problems at the social and cultural level, including poverty, inadequate education and poor housing.10 In this chapter, parent support is defined as any intervention for parents or carers aimed at reducing risks and/or promoting protective factors for their children, in relation to their social, physical and emotional well-being. We use the term ‘intervention’ interchangeably with ‘service’ and ‘programme’ to cover a wealth of different activities. 3

Parent Support Services as Defined by the crc

The crc is a set of international standards for child rights, but it explicitly recognises the role of parents as the primary caregivers and protectors of children. As Prof Michael Freeman said at the International Conference 25 Years crc (2014): ‘The crc is not anti-family or conflicting with parents’ rights.’ Parents are defined as primary duty-bearers for the implementation of children’s rights: they shall act with the best interests of their child as their basic concern (art. 18) and shall take into account the child’s evolving capacities (art. 5) or the child’s age and maturity (art. 12). The word ‘primary’ implies that the state has the secondary responsibility to assist parents in these responsibilities. The crc is the only human rights treaty that explicitly requires States Parties to respect the responsibilities, rights and duties of parents and contains various provisions in which the role of parents is further elaborated. This becomes most explicit in article 18(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 9

10

Knerr WG, Gardner F & Cluver L Parenting and the prevention of child maltreatment in low- and middle-income countries: A systematic review of interventions and a discussion of prevention of the risks of future violent behaviour among boys (2011). Moran P, Ghate D & Van der Merwe A What works in parenting support? A review of the international evidence (2004).

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responsibilities and shall ensure the development of institutions, facilities and services for the care of children. The crc does not provide a concrete definition of ‘appropriate assistance to parents and legal guardians’, but different articles provide insight into the kind of services that are required from States Parties in terms of parent support. Following article 18.2, States Parties are obliged to support parents in all their responsibilities concerning the implementation of the rights of their child, including secure living conditions (art. 5), birth registration (art. 7), maintaining child–parent contact (arts. 9 and 10), raising a child with disabilities (art. 23), social security and insurance (art. 26), and child protection (art. 19). In addition, the crc obliges States Parties to provide the following specific forms of parent support:11 • provide parents with information and support in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents (art. 24); • preventive health care, guidance for parents and family planning and services (art. 24); • make primary education free and accessible to all (arts. 24, 28); secondary education and vocational training free (if possible) and accessible; and, at the least, offer financial assistance to those parents in need (art. 28); • support programmes for parents to prevent abuse (art. 19.2); • provide special care and assistance for parents of a child with disabilities (arts. 23.2, 23.3); • provide child-care services and facilities for children of working parents (art. 18.3); and • ensure the development of institutions, facilities and services for the care of children (art. 18.2). The Committee on the Rights of the Child has often reaffirmed States Parties’ duty to provide parent support, both in its Concluding Observations on State Parties reports as well as during general discussions and in General Comments. For example, in the 2001 General Discussion: Violence against Children, Within the Family and in Schools, participants highlighted the importance of family support for prevention of family violence, particularly in helping to cope with economic and psychological stress and other risk factors, and stressed the 11

Doek JE ‘Keynote Parents and the Rights of the Child at the Council of Europe Committee of Experts on Children and Families (cs-ef) Strasbourg, Dec. 8 and 9, 2004’.

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need for parent education and support rather than punishment.12 To take another example, the 2005 General Comment No. 7 on implementing child rights in early childhood reaffirms the need for States Parties to render appropriate assistance to parents in the performance of their child-rearing responsibilities, including assisting parents in providing living conditions necessary for the child’s development and ensuring that children receive necessary protection and care.13 The African Charter on the Rights and Welfare of the Child (acrwc) is equally explicit about the rights parents have to support and protection. It provides that the family ‘shall enjoy the protection and support of the State for its establishment and development’ (art. 18.1). The acrwc is even more explicit than the crc in requiring States Parties to provide material assistance and support programmes to parents in need (art. 20.2). By defining the family as the basic unit of society, the acrwc takes into consideration that the African family is a network, comprising the immediate and extended family. 4

Implementation of Parent Support Services

The crc clearly states that one of the most important conditions for the realisation of the rights of the child is that the child grows up in a family environment. It explicitly recognises the need for parent support services, although looking back at 25 years of the crc, it is this part of the Convention in particular which has been given little priority by States Parties. As Dr Maria Herczog observed during the International Conference 25 years crc (2014): ‘Governments like to forget this second part of article 18.’ This is partly due to a lack of resources in low-income countries that hampers the implementation of the crc. However, it is also true that governments tend to prioritise children’s issues without considering the role of parents in addressing them. Parents are often blamed for not fulfilling their obligations, leading to large-scale institutionalisation of child care in some countries.14 This can be explained partly by the limited priority given to parent support by donor countries and agencies. The majority of multilateral and international agencies use a rights-based

12 13 14

Committee on the Rights of the Child Report on General Discussion Violence against Children, Within the Family and in Schools (2001). Committee on the Rights of the Child, General Comment No. 7 on implementing children’s rights in early childhood (2005). Save the Children Keeping children out of harmful institutions (2009).

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approach, but few have given specific priority to parent support services over the past 25 years. At grassroots level, a similar trend is visible in Africa. For example, in Tanzania a study of the mandates of organisations working on child rights reveals that none requires working with parents, despite the strong focus on family and community support in policy documents and guidelines for good practices. It seems that children receive more information on their rights than their parents, contributing to an imbalance in the relationship between caregivers and children.15 In spite of an overall lack of priority for implementation of the crc’s provisions on parent support, States Parties and the international community have made some progress in specific areas of parent support. First, parent support services in the areas of livelihood, health, nutrition and education have increased as a result of the Millennium Development Goals. An example of this is through the rapid expansion of social protection programmes.16 Secondly, early childhood development policies and programmes generally include support services for parents of young children.17 Thirdly, there is increased attention on parenting programmes to prevent violence against children.18 The progress made on specific parent support services is encouraging, but it does not respond to the broad range of parent support services parents are entitled to, as defined by the crc. Only few interventions support parents in basic parenting skills such as communication, self-esteem and the transfer of values. Furthermore, people tend to associate parent support with early childhood programmes, depriving vulnerable families with older children. As a result, holistic parent support services in developing countries generally remain limited to small-scale initiatives of local or national non-governmental­ organisations (ngos). These services are generally inspired by parenting

15

16 17 18

Snipstad MB, Lie GT & Winje D ‘Child rights and wrongs: Dilemmas in implementing support for children in the Kilimanjaro region, Tanzania, in the era of globalized aids approaches’ in Thelen T & Haukanes H (eds) Parenting after the Century of the Child: Travelling Ideals, Institutional Negotiations and Individual Responses (2010) 205–22. Food and Agricultural Organisations of the United Nations (fao) Social protection and agriculture: breaking the cycle of rural poverty (2015). World Bank Group ‘Chapter 5. Early Childhood Development. World Development Report 2015: Mind, Society and Behavior’. Knerr WG, Gardner F & Cluver L Parenting and the prevention of child maltreatment in low- and middle-income countries: A systematic review of interventions and a discussion of prevention of the risks of future violent behaviour among boys (2011).

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programmes from high-income countries which, when translated into different social and cultural contexts, yield mixed results.19 5

Case Study: Parent Support Services in Kenya

Kenya was, in 1990, among the first 20 Member States to ratify the crc. In 2008, the Kenyan state was recognised by the African Child Policy Forum as a leader in Africa for acknowledging child rights and being accountable to children. Kenya was ranked first among all African countries for ‘its effort to put in place an appropriate legal and policy framework for children’.20 Although much progress has been made in Kenya to promote children’s rights, large inequalities persist in access to services and the country is still facing unacceptably high levels of violence against children.21 Kenya has incorporated the crc and the acrwc into domestic law through the enactment of the Children’s Act of 2001. The Children’s Act imposes the following duties on parents: • to maintain the child and in particular to provide the child with adequate diet, shelter, clothing, medical care, education and guidance; and • to protect the child from neglect, discrimination and abuse. The Act provides that each of the entitlements is explicitly coupled with an obligation imposed upon parents, the government, or both. For example, Section 4.1 of the Act states: ‘It shall be the responsibility of the Government and the family to ensure the survival and development of the child.’ However, the Act does not specifically take into account the relevance of parenting, nor does it seek to provide a holistic framework for parent support and protection.22 Since 2004, parent support services have been part of the dialogue between Kenya’s government and the crc Committee. In Kenya’s second State Party 19

20 21 22

Knerr WG, Gardner F & Cluver L Parenting and the prevention of child maltreatment in low- and middle-income countries: A systematic review of interventions and a discussion of prevention of the risks of future violent behaviour among boys (2011). acpf The African Report on Child Wellbeing 2008: How Child-friendly are African Governments? (2014). unicef, cdc & knbs Violence against Children in Kenya: Findings from a 2010 National Survey (2012). Onyango GO ‘Position paper: An analysis of laws and policies supporting families/­ parenting in Kenya & Tanzania’ (2009) presented at the International Experts Meeting on Skillful Parenting, 1–2 October 2009, Nairobi.

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report (2004), the government elaborates on its initiatives to focus on the family as part of social policy, in particular programmes in family counselling and parental education. The Committee welcomed these initiatives, but also raised concerns about the limited availability and accessibility of these services, the high levels of poverty, the effects of the hiv/aids pandemic and negative social trends and attitudes. In its Concluding Observations the Committee recommended that the State Party provides further support to families in the form of family counselling, parenting education, social workers at the local level and financial allowances, as well as conduct public awareness campaigns in this regard.23 In response, the Kenyan Government stated the following in its third State Party report:24 The State Party has increased the number of Children’s Officers from 432 in 2003 to 581 in 2010 and opened offices in 154 out of the 288 districts. These officers and other non-state actors offer family counselling and parental education. Despite the good intentions of the Kenyan government, in reality the number and capacity of Kenya’s children’s officers is not sufficient to tackle the problems faced by children and their families. Attempts have been made to fill this gap through the recruitment of volunteer children’s officers. Although these officers play a central role in child protection and family support at local levels, there remain gaps in their recruitment modalities, qualifications, provision of training, coordination, and monitoring and evaluation of their work.25 The training curriculum of children’s officers has no particular focus on parent support, nor is there a national parenting curriculum to guide their work with parents. Children’s officers continue to rely on civil society operating in their area to support parents effectively in their responsibilities concerning the implementation of the rights of their child. Kenya has a variety of parenting programmes that are implemented by civil society organisations, including the ics Skillful Parenting programme that has been recognised by the Kenyan government as a best practice. Skillful Parenting is a parent support programme that reinforces positive parenting practices, 23 24 25

Committee on the Rights of the Child, Concluding Observations on the Second State Party Report CRC/C/KEN/Q/2 (2007). The Republic of Kenya Third, Fourth and Fifth State Party Report to the uncrc Committee CRC/C/KEN/3 (2012). National Council for Children’s Services Summary of the Outcome of Mapping and Assessing Kenya’s Child Protection System: Strengths, Weaknesses and Recommendations (2010).

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empowering parents to address the challenges that they face in bringing up their children. It is built upon the evidence-based understanding that change will take place only if parents feel there is a need for change and believe in their capacity to change. Dissemination of skillful parenting involves weekly sessions with parent peer groups and awareness-raising among local authorities and communities. Under the guidance of a local facilitator, parent peer groups share ideas, support, information and resources on a variety of topics, such as family relations, roles and responsibilities, values, discipline, family budgeting and child protection. Skillful Parenting is embedded in the ics Agribusiness that works with farmer groups on increased production and household income. This is critical to ensure the participation of parents, especially fathers, and to alleviate poverty as a cause of stress and conflict in families. Since 2012 a total of 6,059 parents in Kenya have participated in Skillful Parenting. The programme has shown promise as a means of effectively safeguarding children’s rights. A recent evaluation conducted in Kenya by the University of Utrecht found that parents, after participation in the programme, experience a more positive sense of competence in parenting and better family and parent–child relationships. In addition, parents report a more child-centred understanding of parenting and more positive child discipline methods.26 6

The Way Forward?

A review of the crc and 25 years of crc implementation reveals a gap in the position of parenting and parent support services in advancing children’s rights. While the crc takes a clear stance on the role of parents and obliges States Parties to provide parent support services, this is not reflected in the majority of child rights programmes. Since 1989, 197 States Parties have taken upon themselves the obligation to support parents, support which is spelled out in various articles of the crc. Some countries have made progress in terms of parenting support, such as Kenya, which has integrated parenting education into its child protection system. However, policies and programmes to support parents continue to be limited and under-resourced and generally do not respond to the broad range of parent support services to which parents are entitled. The Committee on the Rights of the Child should be more explicit in its requirement that States Parties have a duty to provide parents with support 26

Van Esch R & De Haan M (2015) Evaluating Skillful Parenting in West Kenya: Final Report (provisional title).

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and to monitor the quality of support provided by governments. Furthermore, it is time to reconsider the modus operandi of international development for children’s rights. ics, therefore, together with the Parenting in Africa Network advocates for: • a positive approach to parenting that supports parents in making informed choices about how to tackle their concerns, rather than an approach that is judgmental, critical, or prescriptive; • new policy thinking to advance child rights, one in which government and civil society collaborate in their efforts to include parent support services as an integral part of social services; and • a more prominent role of parents on the child rights’ and post-MDG agenda, not only as duty-bearers but as right-holders entitled to social and economic support themselves. It is through quality parent support services that we can build an enabling environment where parents are able to respect, protect and fulfil their children’s rights. * ics is an International ngo based in the Netherlands that creates change by strengthening the socioeconomic capabilities of families through the establishment of social enterprises and the safeguarding of children through Skillful Parenting and child protection systems strengthening in Kenya, Tanzania and Cambodia (www.ics.nl/en). In Eastern Africa, ics collaborates with the Parenting in Africa Network: a network of organisations, individuals and institutions keen to promote skillful parenting practices in Africa for the overall well-being of children and families (www.parentinginafrica.org). Disclosure statement – The Skillful Parenting Programme mentioned in this chapter as a best practice is developed and implemented by ics, the organisation where the author is employed. Bibliography Chapters in Books

Cantwell N ‘Children’s rights in relation to their family’ in Alen A et al., (eds) The UN Children’s Rights Convention: Theory Meets Practice (2007) 389–400 Antwerp: Intersentia.

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Snipstad MB, Lie GT & Winje D ‘Child rights and wrongs: Dilemmas in implementing support for children in the Kilimanjaro region, Tanzania, in the era of globalized AIDS approaches’ in Thelen T & Haukanes H (eds) Parenting after the Century of the Child: Travelling Ideals, Institutional Negotiations and Individual Responses (2010) 205–22.

Papers

Inter-agency Group on Child Protection Systems in Sub-Saharan Africa ‘Strengthening child protection systems in Sub-Saharan Africa’ Working Paper (2012). Onyango GO ‘Position paper: An analysis of laws and policies supporting families/parenting in Kenya & Tanzania’ (2009) presented at The international Experts Meeting on Skillful Parenting, 1–2 October 2009, Nairobi.

Reports and Policies of Governmental Bodies

ACPF The African Report on Child Wellbeing 2008: How Child-friendly are African Governments? (2014) Addis Ababa: The African Child Policy Forum. Committee on the Rights of the Child Report on General Discussion Violence against Children, Within the Family and in Schools (2001). Covell C & Becker J Five Years On: A Global Update on Violence against Children A report from the NGO Advisory Council for follow-up to the UN Secretary-General’s Study on Violence Against Children (2011). National Council for Children’s Services Summary of the Outcome of Mapping and Assessing Kenya’s Child Protection System: Strengths, Weaknesses and Recommendations (2010) Nairobi: National Council for Children’s Services. The Republic of Kenya Kenya’s Second State Party Report to the UNCRC Committee CRC/C/KEN/2 (2004). The Republic of Kenya Third, Fourth and Fifth State Party Report to the UNCRC Committee CRC/C/KEN/3 (2012). UNICEF, CDC & KNBS Violence against Children in Kenya: Findings from a 2010 National Survey (2012) Nairobi: UNICEF, CDC, Kenyan National Bureau of Statistics. Van Esch R & De Haan M (2015) Evaluating Skillful Parenting in West Kenya: Final Report (provisional title) Utrecht: Utrecht University.

Legislation

Kenya. The Children’s Act, supra note 56, s. 23(2) of 2011.

Treaties and Conventions

African Charter on the Rights and Welfare of the Child (1990). United Nations Convention on the Rights of the Child (1989).

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Internet Sources

Doek JE ‘Keynote Parents and the Rights of the Child at the Council of Europe Committee of Experts on Children and Families (CS-EF) Strasbourg, Dec. 8 and 9, 2004’, available at www.jaapedoek.nl/publications/keynotes/keynote_319.doc (accessed 12 December 2014). United Nations The Millennium Development Goals Report 2014, available at http:// www.un.org/millenniumgoals/2014%20MDG%20report/MDG%202014%20English%20web.pdf (accessed at 13 December 2014). World Bank Group ‘Chapter 5. Early Childhood Development. World Development ­Report 2015: Mind, Society and Behavior’, available at http://www.worldbank.org/ content/dam/Worldbank/Publications/WDR/WDR%202015/Chapter-5.pdf ­(accessed 14 October 2015).

Miscellaneous

Committee on the Rights of the Child, Concluding Observations on the Second State Party report CRC/C/KEN/Q/2 (2007). Committee on the Rights of the Child, General Comment No. 7 on implementing children’s rights in early childhood (2005). Food and Agricultural Organisations of the United Nations (FAO) Social protection and agriculture: breaking the cycle of rural poverty (2015) Rome: FAO. International Labour Office (ILO) Marking progress against child labour: Global estimates and trends 2000–2012 (2013) Geneva: ILO. Knerr WG, Gardner F & Cluver L Parenting and the prevention of child maltreatment in low- and middle-income countries: A systematic review of interventions and a discussion of prevention of the risks of future violent behaviour among boys (2011) Centre for Evidence-Based Intervention, Dept. of Social Policy and Intervention, University of Oxford. Moran P, Ghate D & Van der Merwe A What works in parenting support? A review of the international evidence (2004) Policy Research Bureau. Richter LM & Naicker S A review of published literature on supporting and strengthening child-caregiver relationships (parenting) (2013) Arlington, VA: USAID’s AIDS Support and Technical Assistance Resources, AIDSTAR-One, Task Order 1. Save the Children Keeping children out of harmful institutions (2009).

chapter 40

Two for the Price of One: Building a Child Protection System through Social Protection Mechanisms Mayke Huijbregts and Sumaira Chowdhury Abstract The crc is in many ways an instrument for the protection of children, with most of its articles focusing on rights related to a name and identity, life in a family environment, protection from violence and abuse, and health and education. Yet the majority of its 197 signatories have not adequately invested in the justice and social welfare systems required to provide children with meaningful access to their rights. To address this problem, the Government of Mozambique has adopted an innovative and holistic approach, namely capitalising on the significant and increasing investment in social protection mechanisms to simultaneously build a child protection system. While these efforts have taken a number of years and are still a work in progress, this chapter takes stock of the lessons learned from this process as well as its positive outcomes to date. The authors conclude that such an integrated strategy is feasible and indeed desirable in the best interests of the child, both in terms of the principle of the indivisibility of human rights as well as from a practical standpoint, given the efficiencies a joint approach can generate.

1 Introduction The un Convention on the Rights of the Child (crc) is in many ways an instrument for the protection of children, with most of its articles focusing on rights related to a name and identity, life in a family environment, protection from violence and abuse, and health and education.1 Yet the majority of its 197 signatories have not adequately invested in the justice and social welfare systems required to provide children with meaningful access to their rights through quality social and judicial services. Estimates of the percentage of gross domestic product (gdp) directed to social protection range from an average of 1 Convention on the Rights of the Child, available at http://www.ohchr.org/EN/Professional Interest/Pages/CRC.aspx (accessed 21 May 2014).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_041

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3.5 per cent in low-income countries and 6.7 per cent in middle-income countries to 21.1 per cent in high-income ones.2 Among low-income countries, Mozambique is notable for its longstanding commitment to social protection, with a cash transfer programme for the elderly dating back to the 1990s and with the percentage of the state budget allocated to that programme increasing from 0.16 per cent of gdp in 2008 to 0.35 per cent in 2013.3 While Government of Mozambique’s (gom) last periodic report, in 2008, was commended by the Committee on the Rights of the Child for strengthening the national legal framework for children, the Committee emphasised the need for an accompanying increase in state budget allocations for child and social protection programmes, with particular emphasis on the need to bolster the financial, technical and human resources of the Ministry of Women and Social Action (Ministério da Mulher e Acção Social (mmas)).4 Since then, the percentage of gdp allocated to social welfare programmes run by the mmas and its implementing arm, the National Institute for Social Action (Instituto Nacional da Acção Social (inas)), has increased from 0.23 to 0.74 per cent.5 As the leading United Nations agency for children, unicef works closely with governments, civil society organisations and other partners to implement the crc and advance the fulfilment of children’s rights in general. In Mozambique, unicef has worked with a variety of stakeholders to develop an innovative approach, namely to capitalise on the significant and increasing investment in social protection mechanisms to simultaneously build a child protection system. While these efforts have taken a number of years and are admittedly still a work in progress, evidence from subnational levels shows that the initiative is already showing concrete results for some of the poorest and most marginalised children in Mozambique. This chapter takes stock of the lessons learned from this process, using 2009 as the starting-point for understanding the current situation and recognising that systems-building efforts accelerated in 2011. 2

Conceptual Framework and Literature Review

The crc lays out the key principles of child rights, including non-discrimination­ and the need to take into account ‘the best interests of the child’ in all actions. 2 International Labour Organisation World Social Protection Report (2014). 3 Cunha N et al., Towards a Mozambican Social Protection Floor Extension of Social Security Working Paper 2013. 4 Committee on the Rights of the Child, Concluding Observations: Mozambique 2009. 5 ilo/unicef Budget Brief on Social Protection (2014) Draft.

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It also stipulates specific rights related to child protection, including the right of the child to birth registration and identity (arts. 7 and 8); to live in a family environment (arts. 9, 10 and 11, among others); to adequate standards of living (art. 27); and to protection from economic exploitation (art. 32) and sexual abuse (art. 34), specifying clearly that all these rights hold for children with disabilities (art. 23). Given this wide range of issues, one of the challenges of implementing child protection programmes is that, unlike the health, education or justice sectors, there is no corresponding child protection sector or single ministry. Rather, child protection relates to all these sectors, along with others. This is reflected in unicef’s definition that ‘[c]hild protection systems comprise the set of laws, policies, regulations and services needed across all social sectors – especially social welfare, education, health, security and justice – to support prevention and response to protection-related risks’.6 The challenge with such a wide range of child protection (cp) issues is that they easily lead to a single-issue, project-based approach to tackle challenges such as child trafficking, street children, child labour, institutionalisation and child marriage. However, as Wulcyzn et al., note in a systematic review of the evidence, ‘Although such efforts have produced substantial benefits, this diffused approach often results in a fragmented child protection response, marked by numerous inefficiencies and pockets of unmet need.’7 Thus, there is an increased move by key cp actors towards a ‘systems’ approach – that is, looking not at issues but the structures, functions, capacities, gate-keeping and accountability mechanisms that should be addressing the issues. At the core of a well-functioning cp system are, of course, the people who implement it, and, in recent years there has been increasing recognition of the role that social workers play, particularly in terms of supporting the poorest and most marginalised households. Social workers, who can be either employed by the government or not, trained or untrained, and paid or unpaid (as in the case of community committees), are crucial in the frontline response to the poorest and most marginalised children as well as in community mobilisation. With this ‘systems’ lens, ‘child protection’ then also encompasses case management, including community surveillance; referral mechanisms across service sectors; and knowledge and education for caregivers and children. Social protection (sp) can be defined as ‘the set of public and private policies and programmes aimed at preventing, reducing and eliminating economic and social vulnerabilities to poverty and deprivation’.8 Article 26 of the crc 6 unicef Child Protection Strategy (2008). 7 Wulcyzn et al., Adapting a Systems Approach to Child Protection: Key Concepts and Considerations (2010). 8 unicef Social Protection Strategic Framework (2012).

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clearly states the right of the child to such policies and programmes. While there has been longstanding recognition that welfare programmes have played a key role in advanced economies in redressing welfare inequality to some extent, it has only been in the last ten to 15 years that evidence of the success of programmes, such as the Bolsa Familia in Brazil, in improving social outcomes among the poorest households has reinvigorated efforts in other developing countries to follow suit. (In fact, Mozambique is an interesting exception to this general trend, as will be described in Section 3). Consequently, unicef, together with like-minded partners such as Save the Children, has successfully advocated for social protection programmes to be ‘child-sensitive’, meaning that the design of sp programmes should reflect outcomes for children in terms of schooling, health, food security and nutrition. This chapter argues that to see sp and cp as ‘either/or’ possibilities is to ignore the principle of the indivisibility of rights and to miss the opportunity to optimise the investment of financial and human resources, given that many of the systems actors and functions are interrelated. There is increasing evidence to support this view, as will be detailed below. The 2008 unicef Child Protection Strategy9 notes that ‘[cp] systems are part of social protection, and extend beyond it’, and calls for programme managers to ‘ensure that social protection reform contributes to the achievement of child protection outcomes’. The cp Strategy recommends six measures for systems strengthening, which are discussed in Section 4. unicef Mozambique engaged seriously with these recommendations, as demonstrated by its Child Protection section’s vision paper in 2011: unicef Child Protection section will support the Government of ­ ozambique in ensuring that all children are free from violence, abuse, M exploitation and neglect through strengthening, coordinating and ­accelerating a systemic response to child and social protection, complemented by quality service provision and social change, in conjunction with families, communities, civil society, development partners, academia, the private sector and un agencies.10 (See Annexure A) The most comprehensive study to date on the relationship between cp and sp is the 2013 meta-analysis conducted by Barrientos et al.,11 which identified the different pathways by which social transfers could affect cp outcomes: ‘direct’ pathways’, when child protection goals are also the stated goals of the sp 9 10 11

unicef Child Protection Strategy (2008). unicef Mozambique Child Protection Section Vision for 2011–2015 (2011) unpublished. Barrientos A, Byrne J, Villa JM & Peñaa P Social Transfers and Child Protection (2013).

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programme; ‘indirect’ pathways, when poverty reduction also reduces the risk of children’s exposure to violence, abuse and exploitation; and the implementation of sp programmes for improving the capacity of social welfare agencies overall. Based on a review of impact evaluations, the meta-analysis finds that ‘social transfers have direct effects on birth registration, child labour, family separation and child marriage’, and goes on to note that it is possible that other relationships may exist that were not captured due to the design of the evaluations. This chapter describes the experiences to date in Mozambique that further support the hypothesis that holistic sp programmes and systems that incorporate an understanding of and strategies for reducing the socioeconomic barriers to child protection are a necessary (though admittedly not sufficient) condition for addressing the violation of children’s rights. The chapter begins with a review of the context of the country in the early part of the twenty-first century. This is followed by a description of the steps taken towards establishing a holistic child and social protection system and a summary of the major challenges that have been encountered and the lessons learned. The conclusion reviews recent progress and identifies future steps. 3

The Mozambican Context: Understanding the Current Situation

Mozambique is large, with a surface area of 801,590 square kilometres, but with a population of a little more than 20 million, it is also one of the least densely populated countries in the world; with a gross national income per capita of just over usd 500, it is also one of the world’s poorest countries.12 It is easy to imagine the challenge of building systems and delivering services in this context. 3.1 Child Protection Overall, Mozambique has a solid legal and policy framework in place for the protection of children. However, at the initiation of a concerted approach to cp systems-building in 2009–2010, there was still a gap to be bridged in terms of how these laws fulfiled the rights of Mozambican children, as evidenced by these selected indicators13 related to cp: 12 Mozambique country profile, available at https://data.un.org/CountryProfile.aspx? crName=Mozambique (accessed 13 October 2014). 13 These data use 2009–10 as a reference point as they derive from the unicef Situation Analysis that based its statistics on the data from National Institute of Statistics Multiple Indicator Cluster Survey (mics) (2008).

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• 31 per cent of children under five had a birth certificate; • 22 per cent of children aged between 5 and 14 years were involved in child labour; • 48 per cent of girls were married before they turned 18; • 12 per cent of children were orphaned and 5 per cent of children were ‘vulnerable’ due to hiv and aids; and • 50 per cent of girl respondents had been abused by boys in their peer group. Nor was the situation much better from an sp perspective. Despite growth rates being as high as 8 per cent,14 more than half of the country’s population lives below the poverty line,15 with children being affected at about the same rate. Moreover, this situation was compounded by the impact of the hiv and aids epidemic, with a national survey in 2009 finding a hiv prevalence rate within the age group of 15–49 years of 11.5 per cent, with the highest proportion among women (13.1 per cent) compared to men in the same age group (9.2 per cent).16 3.2 The Impact of hiv and aids Indeed, the widespread recognition of the detrimental impact of the aids epidemic on developing countries led to an emergency-like response in the early years of the twenty-first century, most notably exemplified by the launch in 2003 of the United States President’s Emergency Plan for aids Relief (pepfar). usaid, unicef, unaids and wfp also combined efforts to launch the Rapid Assessment, Analysis and Action Planning (raaap) process to review the state of orphans and vulnerable children (ovc) and develop related action plans that all partners could rally behind to redress the situation in a coordinated way. Mozambique was, in 2004, one of the first countries to participate in the raaap process. A steering committee was formed comprising the then Ministry of Women and Co-ordination of Social Action, and representatives of other ministries, civil society organisations, usaid, wfp, unaids and undp, with unicef as the chair.17 Following this process, the government of Mozambique developed both a National Plan of Action for Children (pnac) and a National Plan of Action for Orphans and Vulnerable Children (pacov), covering the years 2006–2010. A Technical Working Group on ovc (gtcov) was 14 15 16 17

Economist Intelligence Unit Mozambique: Country Report (October 2010). Ministry of Planning and Development Inquérito ao Orçamento Familiar (Household Poverty Survey) (2010). Ministry of Health National Survey on aids (known by its Portuguese abbreviation, insida) (2009). ovc raaap, available at http://stopaids.org.uk/wp-content/uploads/2013/08/OVCRAAAP 05.pdf (accessed 12 June 2014).

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tasked to monitor the implementation of the pacov, although interestingly no corresponding group was established for the pnac.18 For the next few years, the bulk of resources for CP-related programming was directed primarily to projects concerning ovc. A turning-point came in the form of the ground-breaking Joint Learning Initiative on Children and aids report, which clearly showed that this ‘aids orphans’-centric approach was doing a disservice to other equally poor and marginalised children, who were falling through the cracks. This meta-analysis found that [a] bold change in approach is necessary that: (1) extends support and services to all children in need, including, but not limited to, children who have lost parents; (2) builds policies and programmes that support extended family and community networks in caring for children; and (3) tackles poverty and gender inequality […]19 3.3 Social Protection Poor and vulnerable children were not originally intended as beneficiaries of  Mozambique’s cash transfer programme. The Food Subsidy Programme (Programa Subsídio de Alimentos (psa)) was established in 1990, which makes it one of Africa’s longest-standing sp programmes. It was created to help ultrapoor labour-constrained households – consisting of the destitute elderly (women above 55 and men above 60 years of age), people living with a disability and the chronically sick and their dependants – by providing them with a monthly cash transfer. However, a study found that a majority of the elderly beneficiaries in fact had children living with them as dependants.20 This ­validated prior advocacy efforts by unicef and its partners to increase the scale of the subsidy for ‘direct’ beneficiaries and to increase the amount for ‘indirect’ beneficiaries (that is, children). In recent years, there has been significant progress in the development and endorsement of a legal and policy framework. In 2007, the Social Protection Law was adopted, providing a comprehensive overview of basic sp 18

19 20

This is perhaps not so surprising, given that the definition of ‘ovc’ in the pacov is not solely AIDS-related, but rather covers a gamut of issues related to poor and marginalised children, effectively rendering the pnac and pacov nearly equivalent. Joint Learning Initiative on Children and aids Home Truths: Facing the Facts on Children, aids, and Poverty (2009) 9. International Policy Centre for Growth The Programa Subsidio de Alimentos in Mozambique (2010) Policy brief no. 14.

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­ rogrammes for poor and vulnerable households living in chronic poverty and p difficult circumstances. This was followed by the approval of the Regulations for Basic Social Security in December 2009 and the National Strategy for Basic Social Security in April 2010, which together set the stage for a comprehensive stocktaking of current sp mechanisms, complemented by a series of affordability and costing analyses, to achieve increased programme coverage and impact, system efficiency and improved coordination. The adoption in 2011 of a revised set of four sp programmes has provided the basis for one improved and holistic sp system. The four programmes are the national social cash transfer scheme for ultra-poor and labour-constrained households, the Programa Subsídio Social Básico (pssb); the Programa Apoio Social Directo (pasd), which provides in-kind assistance through vouchers and/or once-off material support; the Productive Social Safety net, which mainly consists of a public works programme component; and social services addressing the needs of children, the elderly and people with disabilities living in residential care institutions. National coverage of the cash transfer programme has increased significantly, from 183,000 households in 2008 to 427,000 in 2014, representing an increase of 133 per cent in six years.21 Furthermore, the cash transfer programme has maintained continuous government funding for almost 20 years, with annually intensified fiscal space increasing from 0.3 per cent of gdp in 2011 to 0.56 per cent of gdp in 2013. Crucial to this progress was the work of the imf, ilo and unicef in producing economic costing models on sp instruments that provided the basis for advocacy with the Ministry of Finance and Parliament on the existence of fiscal space for this expansion. In addition, it should be noted that Mozambique’s sp programmes have also received financial backing from dfid, the Dutch government, sida, Irish Aid, usaid, the Dutch National Committee for unicef and, in the case of the public works programme, the World Bank. 3.4 The Emergence of Systems Thinking Concurrently, cp systems thinking was also gathering steam across Africa. To disseminate the thinking articulated in the concept papers discussed above, the global inter-agency Child Protection Systems Working Group held a conference in Dakar in May 2012. Overall, the outcome report22 emphasised the different entry-points there can be into building a holistic system, be they 21 22

psc, fdc, rosc & unicef Budget Brief: Social Welfare Sector in Mozambique (2014). Dankoff J Conference on Child Protection Systems Strengthening in Sub-Saharan Africa (2012).

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violence, ovc, social protection, birth registration or alternative care. unicef Mozambique capitalised on the build-up to the Dakar Conference by deepening the understanding of systems-building internally, while working in parallel with mmas to define a vision for a holistic child and sp system. 4

Moving towards a Holistic System: Looking Forward

While there was evidently a great deal of effort and investment in supporting the poorest and most marginalised households, there was little effort to ­integrate sp and cp initiatives. Field visits repeatedly confirmed that many children were living with their grandparents, yet in a typical scenario the household would be benefitting from either cash transfers or NGO-driven support (such as psychosocial support or assistance in acquiring birth certificates or attending school), but not both. This, of course, does not take into account those households falling through the cracks and receiving neither. Moreover, there was still little systematic thinking about the human resources involved in implementing these programmes, despite the obvious need to do so. According to the mmas 2010 Human Resource Development Plan,23 the Ministry had a total of 1,534 staff at national, provincial and district levels. Even if one takes the South African Department of Social Development’s standard of 60 cases per social worker as a reasonable target for a developing country, it is not difficult to infer that in a country where 10 million people are living below the poverty line, current staff levels are in no way sufficient to allow for a realistic or feasible workload. Moreover, given that the 2010 report also noted that only 429 of mmas staff had any level of training24 in social welfare or early childhood development, it is also clear that their technical capacity was not at an ideal level. Of course, it should be noted that these numbers do not take into account other social workers, such as the approximately 5,000 community-level agents (permanentes) of inas, the 1,400 community child protection committees, and those social workers working in other sectors, such as justice, or on behalf of civil society. The inherent weaknesses of such a fragmented approach made Mozambique an early participant in the global move towards cp systems. Given the increased interest and investment in sp, as discussed above, it seemed logical to try to piggyback cp systems-strengthening, as recommended by the unicef cp Strategy. This is described in more detail below. 23 24

mmas Plano de Desenvolvimento de Recursos Humanos (2010). That is, with at least Class 7-level education combined with some technical training.

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Incorporating Child Protection in National and Decentralised Planning Processes As noted above, Mozambique already had a well-developed policy and legal framework, an enabling factor to catalyse action. That being said, the development of the second national poverty-reduction strategy, the Plano de Acção Para Redução da Pobreza (parp), was in some ways a missed opportunity to focus on the centrality of children in poverty-reduction efforts, since no concerted advocacy efforts were taken to that end. There is a glancing reference to cp, and even then, largely in the context of ovc. sp, on the other hand, is repeatedly and concretely referred to in the parp as a key strategy for poverty reduction; the government also expanded the Social Action Working Group to include more partners supporting sp programmes. Moreover, an important step forward in terms of national planning processes was that the pnac and pacov were consolidated into one document in recognition of the need for a holistic response to child rights. Conducting a cp ‘systems mapping’ in 2012–2013 went some way towards redressing this situation, though it was unfortunate that delays in undertaking the mapping meant it came too late to be fed into the pnac ii, as had been originally envisioned. Another positive outcome of the cp systems mapping was a better understanding by government counterparts and civil society partners of the roles the various ministries play in addressing cp matters. It also brought about a recognition of the gaps that still exist in the multi-sectoral system to help child victims of violence adequately access medical and legal support, together with the commitment from government to cost the rolling out, further strengthening and expanding of cp systems. In addition, unicef partnered with a leading national non-governmental organisation (ngo) to produce annual ‘Budget Briefs’ on key ministries, including mmas. The annual exercise of developing these Briefs provided important opportunities for joint analysis and advocacy for increases in the state budget.

4.1

Ensuring that Social Protection Reform Contributes to Child Protection Outcomes An analysis of the Budget Briefs of the social welfare sector over the years clearly showed that the lion’s share of budgets were being directed to sp programmes; for the unicef team, this raised the question of how to capitalise on the momentum of sp to advance the cp agenda. The 2010–2011 sp reform process offered a major opportunity for advocacy for the increased recognition of children as both direct and indirect beneficiaries of government ­funding. 4.2

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In particular, unicef used existing data to estimate the number of child-headed households, resulting in their being included as a target of the pasd for the first time. unicef also emphasised the right of orphans and vulnerable children to live in a family environment, but noted that evidence indicated that extended families were less willing to absorb them due to poverty; this resulted in foster families being included in the pasd and the Public Works Programme, again for the first time. In addition, Mozambique’s status as a pilot ‘Delivering as One’ country in terms of un reform offered various opportunities towards this end. In 2011, Mozambique was selected as a pilot country within the ‘Social Protection Floor Initiative’, a global UN-wide effort involving 18 un agencies to promote the extension of a set of social policies designed to guarantee basic income security and access to essential social services for all, with particular attention to vulnerable groups, especially children. In Mozambique, the ilo, unicef and wfp collaborated closely on the Social Protection Floor initiative at macro, meso and micro levels. In this context, the three agencies worked with government partners, policy-makers, journalists, Members of Parliament and civil society to enhance knowledge and awareness on sp. unicef took advantage of these platforms to make the case for the contribution of sp to other social sectors, such as health and education, as well as for how sp could lead to improved cp outcomes and a reduction in cp risks. unicef’s longstanding partnership with the ilo and wfp on sp was formalised in the development of the One un Joint Programme on Social Protection, which, after some advocacy, also incorporated CP-related issues. Since 2011, the Swedish International Development Agency (sida) has invested approximately usd 12 million over three years in the Joint Programme for the gradual scaling-up of sustainable sp initiatives. unicef successfully advocated with sida for some of these funds to be used for linkages to birth registration, alternative care and psychosocial support. This resulted in efforts to provide more holistic support to households on the pssb, such that children who were living with beneficiaries but not receiving the dependency allowance because they lacked a birth certificate received targeted assistance to close that loop; particularly in the case of orphans living with their grandparents, these children also received psychosocial support from trained community workers. The bulk of the funds from sida focused on strengthening the institutional capacity of mmas and inas through the establishment of a Single Beneficiary Registry and Information Management System (ims), alternative payment modalities, and improved communication and monitoring systems. A fundamental strategy in this reform process was the establishment of an integrated case management system to allow for the regular assessment of the well-being

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of the beneficiaries of sp programmes in addition to checking that they received their entitlements correctly. This approach will necessarily transform the permanentes through in-service training, together with trained community committees, from agents handing out cash into community-level social workers so that they are able to refer beneficiaries to complementary services – such as birth registration, psychosocial support and social services like health and education – and identify signs of distress in cases of violence and abuse. This practice of case management has become recognised by mmas and inas as an integral component of programme design. It will feature in the ims through the inclusion of the Child Status Index software programme to focus on monitoring and tracking the well-being of children in the beneficiary households in terms of food and nutrition, shelter and care, protection, health, psychosocial health, education and skills. 4.3 Promoting Justice for Children within the Rule-of-law Agenda unicef has supported the development of a multi-sectoral response system for children who are in contact with the law, in conflict with the law, and victims of violence, through a multi-pronged approach in keeping with the cp systems framework. The first step consisted of support for the development of a legal and regulatory framework, most notably through the Children’s Act, the Family Act and a reference book on the Promotion of Children’s Rights and Child Protection. These laws were endorsed by the Council of Ministers and ultimately approved by Parliament. The next step was the capacity development of key actors involved in decisions pertaining to children once their rights had been violated. A new set of curricula was developed to train judges, prosecutors, lawyers and the police on children’s rights and cp in close collaboration with the national training centre for the judiciary and the police academy. Over a period of three years, this led to the training of magistrates, prosecutors and more than 9,000 police agents. A major breakthrough in institutionalising this training came when the government decided to integrate children’s rights and cp in the curriculum of the police. In 2012, unicef initiated a partnership with the Forensic Medicine Department of the Ministry of Health to develop the curriculum to train doctors in forensic medicine.25 25

This is a crucial component of a child protection response system, since without evidence of the violation of the girl or boy, the case cannot be docketed and brought to court. Forensic doctors examine the victim, mostly in case of sexual abuse, and write up the evidence for the police to bring forward to the attorney general’s office for a dossier to be presented at the court.

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Additionally, unicef invested in the construction and equipment of 23 Victim Support Units across the country, mainly at provincial capital level, and in 400 police stations. unicef also worked closely with the Free Legal Aid Society (Instituto do Patrocinio e Assistencia Juridica) to see that legal aid providers were trained and posted in the units to ensure that victims of violence have free access to legal aid. In 2011, with unicef support, the Child Helpline was launched in Mozambique, a free telephone line for children to tell their story, be heard, and be counselled or ultimately referred to specialised medical and legal aid. In 2012– 2013, Child Helpline received approximately 200,000 calls from children, of whom 64 per cent received support through counseling or referral, with the balance relating to missed calls, silence and malfunctioning of the line. Recognising that the prevention of violence against children is perhaps even more important than response, unicef has also worked closely with partners to reach communities through different channels to address social norms that infringe on child rights. Since 2011, unicef has supported the Ministry of Education and mmas on the Zero Tolerance Campaign on Violence through schools. Starting in 2012, a set of guidelines was developed in close collaboration with representatives from various religious groups to address children’s rights issues in mosques and churches during weekly prayers. Community radios, community theatre, child-to-child radio programmes, combined with national advocacy on tv and radio, have been another key strategy for reaching children. In keeping with a holistic approach to child rights, other protection issues, such as birth registration, have also been incorporated in these efforts. Strengthening Coordination among Child Protection System Actors One of the key drivers of success in advancing cp systems in Mozambique was the positive working relationship between the government and civil society organisations. First and foremost, since the raaap process, unicef had financially supported the functioning of the gtcov and numcov, primarily at national level but with increasing support at provincial level as well. These groups brought together officials from relevant line ministries (such as mmas, the Ministry of Justice, and the National aids Council) as well as key ngos. In addition, in 2011, unicef made the strategic decision gradually to wind down investments in ngos and redirect the funds towards government bodies instead. Nevertheless, a tactical choice was made to continue to partner with ngos that could provide technical expertise on specific issues within a systems-building context.

4.4

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Particularly important for cp systems is improved coordination among different government sectors. unicef supported the design of a flowchart to detail the referral service system in cases of violence against women and girls, describing the steps to be taken from social welfare to the police, the medical team, attorney general and, ultimately, the court. The intention is that the guideline should be expanded to represent the multi-sectoral collaboration among government institutions on cp issues, given that the various steps are the same. 4.5 Strengthening the Social Welfare Sector A two-pronged approach to strengthening the social welfare sector was adopted: developing a case management system; and building the capacity of the sector in terms of financial assistance, human resources and operating equipment. As discussed above, in 2011 unicef Child Protection section made a decision to wind down project-implementation partnerships with ngos, redirecting those resources to government systems. As it was one of the few direct contributors to mmas and its provincial directorates, this had a notable financial impact on the resources available to the ministry at a subnational level.26 As discussed earlier, the picture in terms of staff development was initially not much rosier, but this has been changing gradually. With support from ­usaid and its Health Systems 20/20 project, mmas launched a bachelor’s degree (licenciatura) for 50 students, as well as extended training for 30 mid-level technical staff and 25 early childhood educators. unicef also supported the second and third years of the licenciatura, as well as the adaptation27 and rollout of a long-distance 18-month certificate programme for community-based workers with children and youth. In addition, in partnership with ngos,28 ­unicef supported training for social workers on issues such as alternative care, psychosocial support and care of children with disabilities, and the provision of training specifically for social workers in the courts. At the crux of these efforts to build a social welfare system was the development of a case management system. In addition to developing the ims described above, unicef worked with the gtcov to conceptualise a workable case management system for Mozambique. In tandem with a mapping 26 27

28

It should be noted that only seven ‘child-friendly districts’ received funds directly; the rest of the monies were managed at provincial level. The course was originally developed by unicef’s Eastern and Southern Africa Regional Office in conjunction with the Regional Psycho-Social Initiative and the University of KwaZulu-Natal. That being said, it required significant effort not only to translate it but to adapt it to the Mozambican context in order to receive national accreditation. Specifically, Give a Child a Family, repssi, and the International Child Development Programme.

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exercise that identified community committees across the country, unicef led the production of a community case management manual. This also drew on the ‘minimum standards’ work initiated by usaid and piloted by other civil society organisations as a case management tool for community committees. The roll-out of the training for community committees has begun, and is to be complemented by the provision of a pack containing guidelines and writing equipment, as well as a t-shirt with the mmas logo. While the state budget cannot absorb the community committees as paraworkers, the government has agreed to recognise more formally the role they play in community case management, this by means of statutory reporting lines to the district social welfare offices. Community case management has also been recognised as a distinct module in the new ims for sp programming and in the procedures on sp to ensure that the provision of cash or in-kind assistance to households is undergirded by a functioning case management system supported by social agents. 4.6 Supporting Birth Registration unicef has a longstanding history of supporting birth registration as a fundamental right of the child. In Mozambique in particular, unicef supported the Ministry of Justice (minjus) in implementing a national birth registration campaign, which resulted in nearly 10 million people having their births registered over the period 2005–2012.29 There is no doubting the success of this initiative, with data showing that 47.9 per cent of children under the age of five had had their births registered.30 However, with the generous funding of the Dutch government coming to an end, it was clear that a more sustainable approach was needed. Thus, starting in 2011–12, one of the fundamental changes made in unicef’s support to the birth registration programme in Mozambique was the application of systems thinking to this area as well – that is, leading the agenda of ‘Civil Registration and Vital Statistics’ (crvs). This move tallied well with the overall move towards cp systems, given that in Mozambique birth registration is also important for child rights, particularly in terms of advancement in school (birth certificates are required to enrol in Grade 1 and to sit for Grade 5 examinations); being protected from legal prosecution as an adult (in case of children in conflict with the law);31 facilitating placement in alternative care 29 30 31

unicef Birth Registration Fact Sheet (2014). National Institute of Statistics Demographic and Health Survey (2011). The Mozambican Penal Code sets the minimum age of criminal responsibility at 16 years of age. Without proof of age, children, even those below the age of criminal responsibility, can be arrested and detained without recourse to any mitigating measures.

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(foster or adopting families); and accessing sp (as dependants of pssb beneficiaries). In conjunction with other un agencies (notably unhcr, unfpa and who), unicef began advocating with the government of Mozambique for a review of the current approach to birth registration. The visit of a global expert in this area from the United Nations Economic Commission for Africa (­u neca) in 2011 was a catalytic first step in presenting the vision of a crvs system (see Figure 40.1). The subsequent exposure of senior government officials (including the Vice Minister of minjus, the Vice Minister of the Ministry of Health, and the President of the National Institute of Statistics) to current international thinking and continental good practices at the Durban Ministerial conference on crvs in 2012 was key to the adoption of a crvs agenda. These initiatives led to two major breakthroughs. The first was that free birth registration for children under the age of five was included in National Child Health Week, as a direct result of which approximately 370,000 children have had their births registered in the three Child Health Weeks held since the end of 2012.32 This success also had the positive side-effect of prompting the two ministries to consider other options for systematically strengthening their collaboration, such as reviving the largely defunct registration posts in hospitals. The second breakthrough

Birth and death in a household

Events in home

Cause of death Health

Events in health facilities

Civil Registration

Vital Statistics Fertility, mortality, inter-censal population estimates Figure 40.1

32

Schematic of a fully functional crvs system

Registration data from minjus.

Certificates of births, deaths marriages etc. as proof of age and place of birth and proof of place and date of death

National ID Registration Electoral list, Passport, Driving license, Bank Account, Social protection programmes, etc.

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was that, with support from uneca, Mozambique was selected by the African Development Bank as the first country to undergo an assessment of their crvs system. The assessment provided the basis for an investment plan for crvs, developed by the gom in conjunction with who and unicef. It was presented at the Global Partnership Meeting on crvs in Addis Ababa in 2014, where the possibility was also raised of establishing a Global Investment Fund for crvs. Mozambique, together with Bangladesh, the Philippines and Ethiopia, will be among the countries to apply for the second phase of funding from this Fund. In birth registration in particular, but also across all key programme sectors, the targeted use of communication for development and innovative information, education and communication materials was of vital importance in helping communities and families with children gain a greater understanding of their rights. 5 Conclusion This chapter has sought to show that a holistic approach to sp and cp systems is feasible, even in the context of one of the poorest countries in the world. Of course, some might argue that doing so reduces the focus on particular child rights violations or specific issues (for example, child marriage). However, the authors strongly believe that such an integrated strategy is in fact desirable, both in terms of the principle of the indivisibility of human rights as well as from a practical standpoint, given the efficiencies a joint approach can generate; indeed, doing otherwise would not be putting the best interests of the child first. This chapter has demonstrated that applying a systems approach to cp necessarily involves a joint emphasis on sp, particularly from the viewpoint of social welfare. As such, the experience in Mozambique affirms the hypothesis of Barriento et al., that the third pathway for sp to improve cp outcomes is the implementation of sp programmes that lead to the improved capacity of social welfare agencies overall. There has been clear progress in defining and realising referral pathways in the context of targeting and delivering sp programmes, combined with assessment of the well-being of household members and referral to complementary social and judicial services. As such, while the pssb has no stated objectives related to cp per se, it is still having a direct impact on birth registration, the placement of ovc in alternative care, and providing access to psychosocial support. Due in no small part to the funding received via sp, 6,800 of 15,000 children identified as living in institutions have

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been de-institutionalised and placed in a family environment, while 346,773 children have benefited from psychosocial support.33 Feedback from decentralised levels is also promising: indeed, the earliest adopters of the concept of cp systems were in fact provincial heads of social welfare, who felt it reflected their realities in dealing with vulnerable children better than a project-based approach. For example, in April 2013 the Department for Social Welfare in Beira, Sofala province, produced a report indicating how many families with children had been put on a social grant; it also indicated that children in the beneficiary households had received a birth certificate and psychosocial support, while some children were de-institutionalised and placed with foster families who received social assistance to do so. This was the first real demonstration of how government institutions at local levels had understood the vision and done everything in their power to collaborate with other government institutions to ensure adequate access to the integrated package of services. That the government, with support from unicef, has integrated the investment case for the incorporation of cp outcomes into sp is evident in the fact that the costed Programme of Action for Social Welfare, developed by the Social Action Working Group in 2013–2014, includes the cost for cp systembuilding and linkages from sp to other programmes such as birth registration, alternative care and psychosocial support. The overall budget envelope of more than usd 115 million per year reflects total investment in the sector by both the government and development partners. The Programme of Action provides a transparent plan for investment in the sp sector as well as an instrument to monitor progress and report on results. What is less clear – for now, at least – are the indirect outcomes of the linkages to cp from sp. While community committees and the permanentes will be trained to identify signs of distress, particularly those relating to violence, abuse and neglect, it remains to be seen if this translates into action or, ideally, prevention in the first place. This will be crucial if the sp/cp programmes in Mozambique are to reach their potential to be not only protective but transformative as well. One area where the systems approach has proven to be transformative is the move from birth registration to crvs. For the first time ever, the Government of Mozambique has included the birth registration process in National Child Health Week in the 2015 state budget, in recognition of the value of this collaboration. The Ministry of Justice has put on its own payroll seven more specialists in the area of Information and Communications Technology 33

unicef Mid-Term Review (2013).

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in order to improve its own capacity to lead and manage e-CRVS. Moreover, Mozambique is finalising the costed operational plan for crvs with a total budget of approximately usd 40 million. The government is currently in discussions with a number of potential donors, including current ones such as sida and the European Union as well as new ones such as Canada34 and the World Bank, through the new Global Financing Facility on crvs. The registration rate of children under the age of five has now increased to 47.9 per cent,35 and while this is arguably due to the campaign phase, it is clear that to maintain or surpass this level will require the consistent effort that only a sustained, systematic approach can provide. Affordability and sustainability are, of course, key to this discussion, particularly in a country where foreign aid has financed up to 50 per cent of the state budget over the last decade. That being said, there has been some change in recent years; in 2012, for example, that figure fell below 30 per cent when donors for various reasons did not disburse as much as they had pledged. What happened, though, is instructive: at a time when the economy is attracting increased foreign investment due to the discovery of natural resources, the government was able to make up some of the shortfall by means of increased revenue raised through taxation and other domestic sources. Admittedly it will take a lot more time to build up a strong cp system across such a large country with high poverty levels, especially at decentralised levels where both human and financial resources are even scarcer, particularly in terms of district social welfare offices. However, this chapter has shown that with a solid vision in place, system-building for effective sp programme delivery and linkages to cp, combined with an integrated ims and case management system, can accelerate the fulfilment of the cp rights of poor and marginalised children in a cost-effective manner – that is, ‘two for the price of one’. The chapter has discussed the enabling factors that catalysed progress in Mozambique, as well as the challenges, constraints and lessons that have been encountered in the process. While this is still very much a work in progress, the building blocks are already in place for a holistic response to ensuring that poor children live in a family environment, are registered, benefit from sp and are protected from violence, abuse and exploitation. With the same vision and intensified investments from government, the private sector and development partners, these social and cp systems are ready to be rolled out on a national scale. 34

35

Discussions are ongoing, but a grant of up to usd 20 million may be provided by the Canadian government to unicef to continue supporting the government on crvs systems building. National Institute of Statistics Demographic and Health Survey (2011).

Figure 40.2

STRATEGIC PARTNERSHIPS Convening and Catalysing Agents for Change

D

N

A

M

E

D

Y

L

P

P

U

S WASH Targeting ultra poor and labour constrained HHs for water supply, sanitation and CLTS

SUPPORTING SOCIAL CHANGE Attitudes, Open Discussion, Awareness of Community

Birth Registration Establishing a child’s identity and right to access services

Social Protection Making social protection programmes work for vulnerable children and their families, including the PSA, PASD, PSNP, PWP

Child protection Prevention and response to Violence, Alternative care, Psychosocial care, Legal support, Justice for Children

The vision of the child protection section Note: As depicted in the 2011 Child Protection Section Vision paper

Childhood poverty and vulnerability, orphanhood, high levels of violence and abuse

Institution alize and link child protection services to poverty reduction and service delivery

Access to quality social welfare services for all children through GoM and civil society support



Health Nutrition Free basic Education health care for Prevention and Quality basic treatment of HIV pregnant education, Child women and chronic and Access to ARV’s, Friendly acute paediatric care, children Schools, ECD malnutrition PMTCT, HBC

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Annexure A

SYSTEMS STRENGTHENING Implementing laws, policies and regulations; building capacity, monitoring and evaluation systems

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Bibliography Working Papers

Barrientos A, Byrne J, Villa JM & Peñaa P Social Transfers and Child Protection (2013) Florence: UNICEF Office of Research. Cunha N et al., Towards a Mozambican Social Protection Floor (2013) Extension of Social Security Working Paper. Wulcyzn, Daro & Fluke et al., Adapting a Systems Approach to Child Protection: Key Concepts and Considerations (2010).

Reports and Policies of Government Bodies

Committee on the Rights of the Child, Concluding Observations: Mozambique (2009). Dankoff J Conference on Child Protection Systems Strengthening in Sub-Saharan Africa (2012) UNICEF West and Central Africa. Economist Intelligence Unit Mozambique: Country Report (October 2010). International Policy Center for Growth The Programa Subsidio de Alimentos in Mozambique (2010) Policy Brief no. 14. International Labour Organisation World Social Protection Report (2014). ILO/UNICEF Budget Brief on Social Protection (2014) draft. Joint Learning Initiative on Children and AIDS Home Truths: Facing the Facts on Children, AIDS, and Poverty (2009). Ministry of Health National Survey on AIDS (known by its Portuguese abbreviation, INSIDA) (2009). Ministry of Planning and Development Inquérito ao Orçamento Familiar (2010). MMAS Plano de Desenvolvimento de Recursos Humanos (2010). National Institute of Statistics Multiple Indicator Cluster Survey (MICS) (2008). National Institute of Statistics Demographic and Health Survey (2011). PSC, FDC, ROSC and UNICEF Budget Brief: Social Welfare Sector in Mozambique (2014). UNICEF Child Protection Strategy (2008). UNICEF Mozambique Child Protection Section Vision for 2011–2015 (2011) unpublished. UNICEF Social Protection Strategic Framework (2012). UNICEF Mozambique Child Protection Section Birth Registration Fact Sheet (2014).

Conventions

Convention on the Rights of the Child, available at http://www.ohchr.org/en/profession alinterest/pages/crc.aspx (accessed 21 May 2014).

Internet Sources

Mozambique country profile, available at https://data.un.org/CountryProfile.aspx?cr Name=Mozambique (accessed 13 October 2014). OVC RAAAP http://stopaids.org.uk/wp-content/uploads/2013/08/OVCRAAAP05.pdf.

chapter 41

Towards an Effective System for Child Protection and Prevention of Violence against Children in South America Akemi Kamimura, Vanessa Orban Aragão Santos and Paula R. Ballesteros Abstract This chapter presents the legal framework and public policies, along with the latter’s coordination mechanisms and monitoring systems, that address violence against ­children in ten South American countries, considering some of the challenges that continue to hamper the implementation of the crc and the World Report on Violence Against Children. It focuses on three key recommendations of the Report: Recommendation 1 concerns to the coordination and integration of national and local commitments and actions taken to respond to violence against children; Recommendation 2 considers progress made regarding international and national legislation to prohibit all forms of violence against children; Recommendation 11 refers to the breakthrough made in establishing national and regional data and investigation systems to support public policies, strategies and plans. The chapter closes by mentioning advances and setbacks that took place after the publication of wrvac in 2006 and highlights several issues that must be considered to improve a child rights-based national plan of action for children.

1 Introduction As the Independent Expert for the Secretary-General Study on Violence against Children stated, ‘[N]o violence against children is justifiable; all violence against children is preventable.’1 Although the right of the child2 to freedom 1 Report of the Independent Expert for the United Nations Study on Violence against Children (A/61/299) 29 August 2006, para. 1. 2 The chapter uses the term ‘child’ to indicate any person under the age of 18, as defined in the crc, except if the original source differs in this regard. Some forms of violence relate specifically to adolescents and are thus referred to here as ‘violence against children’; where necessary, the age period is specified. Article 19 of the crc addresses violence against children.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_042

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from all forms of violence is established by article 19 of the un Convention on the Rights of the Child (crc), violence against children remains widespread in every country of the world. Such acts of violence are frequently socially approved, legalised or authorised by the state, whether they be accepted as ‘tradition’ or disguised as ‘discipline’.3 These acts can occur in every setting, including those in which children should be safe, such as homes, schools and care institutions.4 The 2013 Global Survey on Violence against Children stresses that all children are at risk of violence and that those at greatest risk are the most vulnerable children (those with disabilities, who migrate, who are confined to institutions, and whose poverty and social exclusion expose them to deprivation, neglect and, at times, the inherent dangers of life on the streets).5 Moreover, specific groups face particular risks, due to their age or gender. The risk of violence is present in all five settings where children spend most of their lives: home and family; school and educational settings; care and justice institutions; the workplace; and the community. The Global Survey emphasises that violence is rarely limited to one of these settings but tends to spill over from the one to the other in an interlinked and cumulative manner. Although poverty rates in South American countries are declining,6 the region has high rates of social inequality. Of the 20 most socially unequal countries in the world, five are in South America.7 It is also the most violent region in the world after Central America and Africa.8 According to the United

3 4 5 6 7

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This research also uses the definition of violence in the World Report on Violence and Health (2002): ‘the intentional use of force or physical power, either as a threat or actually, against a child, by an individual or group, which harms or has large probabilities of harming the health, the survival, development or dignity of the child’. Krug EG et al., (eds) World Report on Violence and Health (2002) 5. The United Nations Study on Violence against Children (A/61/299) aims to be a global turning-point to end any kind of justification for violence against children. Office of the Special Representative of the Secretary-General on Violence against Children Towards a World Free from Violence: Global Survey on Violence against Children (2013) xii. Office of the Special Representative of the Secretary-General on Violence against Children Towards a World Free from Violence: Global Survey on Violence against Children (2013) xiv–xv. As indicated in the World Bank Report, the poverty rate in Bolivia, Ecuador, Colombia and Peru decreased by an average of 22 per cent between 2007 and 2012. According to the World Bank survey, the gini index is 56.3 in Bolivia; 55.9 in Colombia; 54.7 in Brazil; 52.4 in Paraguay and 52.1 in Chile. Source: http://data.worldbank.org/indicator/ SI.POV.GINI/. unodc Global Study on Homicide 2013: Trends, Contexts, Data (2014).

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Nations Office on Drugs and Crime (unodc), South America has the highest number of homicides in the world, with almost 80,000 deaths per year. In the region, Brazil, Colombia and Venezuela have homicide rates that exceed 20 deaths per 100,000 inhabitants, which means that these countries are among the 20 most violent countries in the world; by comparison, the world average is 6.2 deaths per 100,000 inhabitants.9 In Latin America,10 40.5 per cent of children and adolescents live in poverty. Poverty affects 70.5 million people under 18 years old. Out of this total, 16.3 per cent live in extreme poverty – that is, more than 28.3 million children. In other words, one out of every six children and adolescents is extremely poor.11 States must see their role as fulfilling clear legal obligations to each and every child, as emphasised by the Committee on the Rights of the Child. To implement the Convention fully and respect its general principles, all state powers – that is, the government, parliament and judiciary – must be engaged. This chapter considers the international human rights standards on children’s rights, especially the crc and its Committee’s General Comments. In this regard, the three recommendations from the wrvac will be discussed in relation to the crc as a whole, especially its general principles. In this context and in celebration of the 25 years of the crc, it is important to know if and how States Parties are dealing with violence against children, in order to assess if they are respecting the human rights of the child. This chapter examines the progress a number of states in South America have made in this regard, in addition to which it considers some of the challenges that continue to hamper the implementation of the recommendations made by the 2006 un Study on Violence against Children.12

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unodc Global Study on Homicide 2013: Trends, Contexts, Data (2014). The vast majority of the data on violence against children produced so far relate to Latin America and the Caribbean. Specific data on South America are scarce, or obtained within countries that do not apply specific and adequate collecting methods that would allow for a better comparison of information. eclac Panorama Social de la América Latina (2013). Based on the crc, the World Report on Violence against Children set out to describe the magnitude and impact of violence against children around the world and made such innovative contributions by taking an in-depth approach to violence in different environments and obtaining the opinion of children about their priorities. Submitted to the un General Assembly in 2006, it issued 12 recommendations to un Member States aimed at achieving significant progress in eliminating violence against children. The report is available at http://www.violencestudy.org.

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To this end, the chapter presents the legal framework and public policies, along with the latter’s coordination mechanisms and monitoring systems, that address violence against children in ten South American countries: ­Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay and ­Venezuela. The chapter is based on research13 undertaken in 2011 to identify the steps that have been taken to implement the recommendations made by the Independent Expert for the United Nations Secretary-General Study on Violence against Children, Paulo Sérgio Pinheiro, in the World Report on Violence Against Children (wrvac).14 What is presented in this chapter is a general panorama of violence against children in the ten mentioned countries and of the degree of compliance with three key recommendations: • recommendation 1 concerns the creation of national coordination mechanisms for combating violence against children and the establishment of public policies, strategies and governmental plans to guarantee an integrated system; • recommendation 2 requests the prohibition of all forms of violence against children in all environments; and • recommendation 11 asks for the creation and utilisation of data and information systems in order to improve public policies, strategies and holistic plans to prevent violence against children. 13

The authors of this chapter were members of the consulting team responsible for analysing the compliance with the recommendations made in the un World Report on Violence Against Children by Ten Countries of South America. See Arida AL, Ballesteros PR, Kamimura A & Santos VOA Mapeo Región América del Sur – Implementación de las Recomendaciones del Estudio sobre la Violencia contra los Niños y Niñas (2011). 14 The wrvac called for the appointment of a Special Representative on Violence against Children in order to disseminate the Study and ensure effective follow-up of its recommendations. In 2009, the appointment of Marta Santos Pais to this position was central to gauging states’ progress in respect of the wrvac’s recommendations. Of the 12 recommendations, three (recommendations 1, 2 and 11) have been considered the core ones because they would guarantee a prevention and protection system for children victims of violence. In order to obtain information on the situation of children in all regions of the world, the Special Representative decided to conduct regional mappings considering the historical, cultural, social and economic characteristics of each locality. Hence, the Movimiento Mundial por la Infancia – Capítulo Latino-americano y Caribeño (mmi-clac) became responsible for managing the mapping of the Caribbean, Central and Southern Americas region. The Centre for the Study of Violence of the University of São Paulo (nev/usp) carried out the mapping of South America, which resulted in the publication Mapeo Región América del Sur – Implementación de las Recomendaciones del Estudio sobre la Violencia contra los Niños y Niñas.

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The chapter also considers children’s perceptions of the context in which they live, as well as good practices relating to the prevention of violence against children and the protection of children against violence in the region.15 The chapter does not intend to discuss specific forms of violence, such as trafficking in children, sexual tourism, violence on the Internet, nor all settings in which violence may occur, such as schools, the workplace, the streets, the community or the household. There are four sections in the chapter. The first has introduced the context that gave rise to the research presented in this chapter. Section 2 is an overview of the implementation of recommendation 1, considering integration and planning of public policies; Section 3 analyses state compliance with recommendation 2 and considers progress made regarding international and national legislation to prohibit all forms of violence against children. Section 4 presents the steps taken to implement recommendation 11, and refers to the breakthrough made in establishing national and regional data and investigation systems to support public policies, strategies and plans. The last section presents conclusions and also mentions advances and setbacks that took place after the publication of wrvac in 2006, highlighting several issues that must be considered to improve a child rights-based national plan of action for children. 2

Recommendation 1: Strengthen National and Local Commitment and Action

wrvac’s recommendation 1 requests that states elaborate a political and normative framework which integrates national planning with concrete and realistic objectives and deadlines. This framework should be coordinated by a body capable of articulating multisectoral actions, relying on sufficient human and financial resources for its materialisation. Considering that the crc establishes that the best interest of the child must always be a primary consideration and that a human rights- and childbased approach to child care and protection requires a paradigm shift towards 15

Methodologically, the research is based on a wide bibliographical review, on primary and secondary documentary analysis (official documents, national laws, reports from both government and non-governmental organisations (ngos)) and on a survey conducted by means of a questionnaire specially developed for this research. Experts from all ten countries were invited to reflect on the status of violence against children in their territories, and focus groups with children were conducted in order to solicit their perceptions of the violence experienced in different environments.

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respecting and promoting the human dignity and rights of the child, the prevention of and response to violence against children must be multi-layered and adjust according to the form of violence, its setting and the perpetrator or perpetrators. The Committee on the Rights of the Child (hereinafter the Committee) states that effective implementation of the Convention requires visible cross-sectorial coordination to recognize and realize children’s rights across Government, between different levels of government and between Government and civil society – including in particular children and young people themselves.16 The Committee also declares that the development of a comprehensive national strategy or national plan of action for children should be built on the framework of the Convention.17 The Committee has already emphasised that States Parties should include children in their national budgeting.18 Although all ten analysed countries ratified the crc in the 1990s, it has not yet been fully incorporated into domestic public policies. While some countries presented plans or national policies aimed at the full implementation of rights of children, the creation of mechanisms for the consistent maintenance and development of such policies was not included in the planning of the strategies; moreover, in several cases, these policies turned out to be governmental rather than state policies, meaning that in many circumstances they were dependent upon the choices of decision-makers. Furthermore, in several countries there is no central coordination body to combine the centralised political and administrative guidelines with the 16 17

18

Committee on the Rights of the Child, General Comment No. 5 (2003) on the general measures of implementation of the crc (arts. 4, 42 and 44, para. 6), para. 27. See Committee on the Rights of the Child, General Comment No. 13 (2011) on article 19: The right of the child to freedom from all forms of violence. The Committee also observes: ‘If such a strategy is to be effective, it needs to relate to the situation of all children, and to all the rights in the Convention. It will need to be developed through a process of consultation, including with children and young people and those living and working with them. As noted above (para. 12), meaningful consultation with children requires special child-sensitive materials and processes; it is not simply about extending to children access to adult processes.’ Committee on the Rights of the Child, General Comment No. 5 (2003) on the general measures of implementation of the crc (arts. 4, 42 and 44, para. 6), para. 29. See Committee on the Rights of the Child, General Comment No. 5 (2003) on the general measures of implementation of the crc (arts. 4, 42 and 44, para. 6), para. 51.

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decentralised execution of the adopted plans. Central coordination is needed in order to follow up on the results and the problems faced by the different actors working on the implementation of the plan. Conversely, ngos have performed an important role in boosting initiatives and monitoring children’s rights. The necessity to amplify the space for civil society participation nevertheless also become clear during the research, ­especially with regard to the effective participation of children in the determination of their priorities.19 The Committee has stated that the right of the child to be heard applies both to proceedings that are initiated by the child as well as to those initiated by others and which affect the child. It emphasised that proceedings must be accessible and child-appropriate.20 However, the research showed that direct participation is guaranteed only in Ecuador, where children between 8 and 16 years old are elected, in a democratic and participative procedure, to compose consultative councils at both national and local levels. Children heard during the research stressed that there is no support for their participation in the public sphere. As noted by the wrvac, violence occurs even in settings where children should be safe. In particular, the juvenile justice system in South America is quite alarming. Countries still maintain legislation and/or practices not in accordance with the crc,21 as well as a juvenile system based on the logic of the adult penal system, a situation which has resulted in complaints to international bodies.22 There are documented cases of illegal and abusive incarceration, detention for investigation, and police violence against children. Conditions of detention and internment are also worrisome. With regard to the corporal punishment of children, it is worth noting that, apart from having specific legislation prohibiting it, certain countries have created dedicated working groups or national plans and programmes to implement these norms.23 In Uruguay, for example, the National Consulting Council­ 19 20

21 22 23

See Committee on the Rights of the Child, General Comment No. 12 (2009) on the right of the child to be heard (para. 2.). See Committee on the Rights of the Child, General Comment No. 12 (2009) on the right of the child to be heard, paras. 33–34; General Comment No. 5 (2003) on the general measures of implementation of the crc (arts. 4, 42 and 44, para. 6), para. 50. Committee on the Rights of the Child, General Comment No. 10 (2007) on children’s rights in juvenile justice, para. 1–3. See Inter‐American Commission on Human Rights Juvenile justice and human rights in the Americas (2011). Corporal punishment and psychological violence were among the issues children mentioned most frequently in the focus groups conducted for this research. Children

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for the Struggle Against Domestic Violence was constituted, while Chile, Paraguay and Peru have formulated, respectively, the Plan to Guarantee the Good Child Treatment; the Prevention and Eradication Programme of Child Maltreatment and Sexual Abuse; and the National Action Plan for Childhood and Adolescence. Where they exist, these plans and programmes were developed in a participative and inter-institutional manner involving several governmental bodies and civil society. The plans determine which responsibilities public agencies should exercise, including identifying and holding accountable those who have the duty of informing the competent authorities in cases of maltreatment (Peru and Chile). In addition, immediate assistance practices have been implemented for the victims of corporal punishment and other abuses, such as the ‘mobile attendance teams’ in Argentina and the ‘attention modules’ of the Health Ministry of Peru. Information and awareness campaigns, along with supporting measures such as hotlines for children at risk, have also been used as strategies in Argentina, Chile and Paraguay. In its turn, trafficking and sexual exploitation of children in South American countries are closely linked to poverty and social marginalisation, and are especially prevalent in border zones or where the practice of sexual tourism has not yet been eliminated. Several published reports have mentioned the extreme vulnerability of the triple border between Argentina, Brazil and Paraguay, which has been an object of cooperation agreements among Mercosur (or Southern Common Market) countries. In South America, trafficking in persons and sexual exploitation are also linked to the lack of supervision of child domestic labour and to early marriage, as happens in Colombia – where girls can get married, with the authorisation of the parents or other family members, at 12 years of age – or in Venezuela, where the minimum age for marriage is 14 years old, facts which in both cases highlight that the minimum age for marriage for boys is higher by two years. Although documentation of such cases has increased, cases continue to be under-reported. The authors’ research also showed that, in South America, most people involved in trafficking and sexual exploitation of children are family members, indicated­that their parents used physical force, insults and humiliation as a way of exercising parental authority. Such behaviour towards children is usually a continuation of intra-marital violence. According to the children in the study, the presence of violence in their homes predisposes them to behave in a violent way among their friends and in adult life, a situation which perpetuates authoritarianism and cycles of abuse.

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neighbours or acquaintances, and that issues of gender and ethnicity also weigh against the child victims of such practices. Cases of disappearance, substitutive forms of care, child pornography and illegal international adoption also form part of these trends. Moreover, information provided by institutions for this research indicated that it is necessary to pay attention to the fact that both trafficking and sexual exploitation of children are always associated with physical maltreatment and psychological abuse. It is very frequent, too, that the victim is blamed for the violations he or she suffers, whether the blame be cast by certain professionals or even by legislation, such as the Uruguayan Penal Code. Furthermore, the problem of child labour in South America is related, above all, to conditions of social and economic inequality in which thousands of families struggle for survival.24 Child labour is a reality in both urban and rural areas, and it generally involves long working journeys, exposure to the streets, and removal from the school environment. Although all the countries are aware of the need to eradicate child labour and consider this fact when developing their public policies,25 many of them have not been able to do so in practice. In spite of the involvement of entities such as the International Labour Organisation (ilo), along with the commitment of private companies that exploit children and of the individuals who use the labour of children in domestic activities, the efforts made in this regard have not been sufficient to change the situation on the ground. In addition, unlike the case in other areas of public policies for children, the issue of race and ethnicity represents an institutional gap in most of the surveyed countries. This issue is one of great importance, given that although indigenous peoples and communities of African descent live in the worst social and economic conditions,26 the research demonstrates that states do not adopt adequate strategies for improving the lives of such groups or give enough attention to them. 24

25

26

The focus groups that discussed this issue pointed out that they see child labour a normal, even positive, fact of life. Working makes them feel like an important part of the family and gives them the respect of the community, even though they resent the fact that they do not have time to play and admit that working jeopardises their school life. For instance, Argentina has instituted a registration system for occurrences of child labour. The system is operated by several institutions that comprise the protection network for children and youth. For instance, in Peru, 78 per cent of indigenous children live in poverty, which is twice as many non-indigenous children in the same circumstances.

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Indigenous children represent up to 8.2 per cent of children in Ecuador, 5 per cent in Chile and Argentina, and not less than 2 per cent in the remaining countries. They continue to be victims of abuse and discrimination, being deprived of the opportunity to experience their own culture, especially so within schools that do not develop multicultural education projects. Although isolated initiatives have been taken, such as the ones identified in Colombia, Ecuador (Indigenous Childhood Agenda) and Paraguay (Solidarity Social Territories), they have not been sufficient to guarantee the national identity and promote the cultural diversity of South American peoples, mainly because these initiatives do not involve the affected communities in the elaboration of public policies and thus do not have lasting results. In the region, this agenda has been taken on by national and international ngos. Moreover, it is fairly common that indigenous children and those of African descent are the main victims of maltreatment and abuse by law enforcement agents; they are also the principal victims of homicides among the youth of their countries, as well as the main parties involved in armed conflict in Colombia. In general terms, it is important to emphasise that, despite how scandalous the problem of child homicide is in the region, no specific public policy to avoid the death of millions of children had been developed at the time that the research was conducted. Considering that repressive perspectives on juvenile justice policies and social inequalities are allowed to continue, there will be no improvement in the future unless South American governments treat the problem as a priority. In view of these facts, the states of the region started to amend their ­legislation in order to criminalise acts of violence against children and to increase the number of plans and programmes aimed at dealing with the issue. At the same time, states maintained measures that restrict contact between children and adults who pose a threat to them. Nevertheless, not all countries have invested in holistic and preventive actions or, when they do so, they have neither the institutional capacity nor the resources and specialised teams to monitor and evaluate the efficiency of the projects. Finally, it is important to highlight the existence of largely ignored problems in the region, such as young refugees, children in street situations, children threatened with death and children involved in armed conflicts. 3

Recommendation 2: Prohibit all Violence against Children

wrvac’s recommendation 2 determines that states shall prohibit all forms of violence against children in any circumstances, including corporal punishment­

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and harmful traditional practices (such as early and forced marriages, female genital mutilation and honour crimes). As stated in the wrvac, a clear prohibition of violence against children must send an unambiguous message that all violence against children is unacceptable and unlawful; furthermore, it must reinforce non-violent social norms. States should take appropriate measures to ensure that there is no impunity for those who commit acts of violence against children and to protect child victims from any harm that may arise from insensitive enforcement of the law. The Committee on the Rights of the Child stresses that all appropriate measures to protect the child from all forms of violence shall be adopted by the States Parties to the Convention. Moreover, there are no exceptions, and all forms of violence against children are unacceptable.27 The Committee also draws attention to the fact that the expression ‘all forms of physical or mental violence’ in article 19 of the crc does not leave room for any form of legalised violence against children. Therefore, states shall take measures not only to adopt legislation criminalising violence against children but also to work on the effective implementation of these norms. The Committee strongly recommends that states adopt domestic legislation in line with article 19 and implement them within the holistic framework of the Convention, establishing a comprehensive policy on child rights, ensuring an absolute prohibition of all forms of violence against children in all settings, establishing effective and appropriate sanctions against perpetrators, and ensuring the protection of child victims and witnesses as well as effective access to redress and reparation, among other measures.28 All ten of the South American countries in the study have ratified the crc and the Optional Protocols on the involvement of children in armed conflicts and on the sale of children, child prostitution and child pornography.29 The countries have also assumed international obligations regarding other treaties concerned with violence against children. These include the Optional Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime; and ilo Convention C182 on Worst Forms of Child 27 28 29

Committee on the Rights of the Child, General Comment No. 13 (2011) Article 19: the right of the child to freedom from all forms of violence, para. 16. Committee on the Rights of the Child, General Comment No. 13 (2011) Article 19: the right of the child to freedom from all forms of violence, para. 38. The recent Optional Protocol on a communications procedure (adopted in December 2011 and entered into force since April 2014) was ratified by Bolivia (2013), Argentina (2015), Chile (2015), Peru (2016), Uruguay (2015), as of August 2016.

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Labour, ilo Convention C138 on Minimum Age and ilo Convention C169 on Indigenous and Tribal Peoples.30 These states have also ratified the main un international human rights treaties: the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights;31 the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women; the ­Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families;32 the Convention on the Rights of Persons with Disabilities; and the International Convention for the Protection of All Persons from Enforced Disappearance.33 In spite of the ratification of such international instruments, these protective standards have not yet been fully incorporated in national law and practice. Notwithstanding the fact that national legislation formally recognises children as rights-holders and consecrates the principle of the best interests of the child as well as the rights of children to be heard and to participate in matters that affect them, its actual implementation is not yet a reality in the countries under analysis. The doctrine of full protection of rights of the child was formally enforced in South American countries. Most countries adopted general and wide norms for the protection of rights of children; Chile alone does not have specific legislation on the rights of children, even though it has made progress in the assimilation of this doctrine. National legislation consecrates the prohibition of violent or discriminatory treatment, economic and sexual exploitation, and material or moral abandonment of children. Nevertheless, the prohibition of violence against children is not applied in practice to all environments and all forms of violence, as requested in the wrvac. The sentence of life imprisonment to individuals who have committed serious offences before reaching 18 years of age is forbidden in all the surveyed South American countries, with the exception of Argentina.

30 31 32 33

Of the ten countries analysed, only Uruguay has not ratified ilo Convention No. 169. As of August 2016, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights had been ratified by Argentina, Bolivia, Ecuador and Uruguay. As of August 2016, only Brazil and Venezuela had not ratified this Convention. As of August 2016, only Venezuela had not ratified this Convention.

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The specific prohibition of corporal punishment is established by the legislation of Uruguay,34 Venezuela35 and, recently, Brazil36 and Argentina.37 ­Corporal punishment is also the object of other norms besides specific legislation, such as laws on intra-familial violence which prescribe punishments, even the loss of parental power, for maltreatment. Nevertheless, ‘moderate’ punishment of the offspring is still authorised in some national legislations, and in practice corporal punishment continues to be seen as an ‘educational’, ‘disciplinary’ and thus socially acceptable measure38 in the countries of the region. Several countries have adopted laws that envisage sanctions and protection measures, but states still fail to avoid the revictimisation of children throughout judicial procedures. Colombia, Peru and Bolivia have made important efforts in the implementation of unique testimony mechanisms (such as Gesell Chambers), but usually such strategies are implemented solely in the main cities of the country. The legislation of the surveyed countries also criminalises sexual violence, exploitation, pornography and prostitution of children, but it is not in full conformity with the Optional Protocol to the crc on the sale of children, child prostitution and child pornography (crc-opsc). As provided in article 3, States Parties of the crc-opsc should ensure that, as a minimum, some 34

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Uruguayan Law 18.214 from 2007, article 12 bis, prohibits parents, tutors or any individual in charge of the care, treatment, education or surveillance of children, from using physical punishment or any type of humiliating treatment as a way of disciplining children. Since 2007 Venezuela has expressly prohibited any kind of corporal or humiliating punishment, and obliges parents, other adults and the state to assure the abolition of all forms of corporal or humiliating punishment of children (Law on Prohibition of Physical Punishment and the respect for the integrity of children and adolescents, published on 10 December 2007). Brazilian Law 13.010, dated 26 June 2014, establishes the right of the child to be educated and to be taken care of without the use of physical punishment or cruel or degrading treatment. On 7 October 2014, a law was promulgated to reform the Argentinean Civil Code which incorporates the prohibition of corporal punishment in its new article 647: ‘Prohibition of maltreatment. Assistance from the State. It is forbidden [to use] the corporal punishment in any of its forms, the maltreatments and any deed which physically harms children. Parents may request assistance from the guidance services from the state agencies.’ Even though corporal punishment is not expressly forbidden in Chile, the Chilean Civil Code, amended in 2008, provides that parents have the option of punishing their children, although such punishment is explicitly limited by excluding all forms of physical and psychological maltreatment.

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acts and activities are criminalised. However, national legislation does not cover all these forms of conduct, and that prohibition is not fully implemented in terms of the prevention, detection, investigation, prosecution and punishment of those responsible for acts involving the sale of children, child prostitution, child pornography and child sex tourism. In addition, with regard to trafficking in persons, national legislation does not establish as a crime all offences described in the international instruments ratified by the states. It was found, moreover, that states focused on the legal definition and criminalisation of various kinds of violent behaviour directed against children, without necessarily adopting appropriate measures to prevent and respond to all forms of violence against children, including the possibility of being subject to revictimisation. Even though protective measures for child victims of violence are envisaged in much of the national legislation, usually there are no provisions that deal with compensation, reintegration, rehabilitation, or even indemnification for victims. 4

Recommendation 11: Develop and Implement Systematic National Data Collection and Research

Recommendation 11 establishes that states should develop and implement national and regional data collection and investigation systems in order to support public policies, strategies and holistic plans to combat violence against children. The Committee on the Rights of the Child identifies and describes a wide range of measures that are needed for effective implementation, including the establishment of coordinating and monitoring bodies, comprehensive data collection, awareness-raising, training and the development and implementation of appropriate policies, services and programmes. Taking into consideration article 2 and the non-discrimination obligation of States Parties to the crc, the Committee highlights the need for data collection to be disaggregated, so that discrimination or potential discrimination can be identified. The Committee also draws attention to the fact that ‘collection of sufficient and reliable data on children, disaggregated to enable identification of discrimination and/or disparities in the realisation of rights, is an essential part of implementation’.39 The Independent Expert for the un Study on Violence against Children too notes that ‘the development of a national research agenda on violence against 39

Committee on the Rights of the Child, General Comment No. 5 (2003) on the general measures of implementation of the crc (arts. 4, 42 and 44, para. 6), para. 48.

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children across settings is critical for knowledge building and improved programme development’.40 In the same vein, the Committee reminds States Parties that data collection needs to include the whole period of childhood and be coordinated throughout the jurisdiction to ensure nationally applicable indicators. In this regard, states should try to create a complete picture of progress towards implementation of the crc, using both qualitative as well as quantitative studies. It is also not enough merely to establish an effective system for data collection. States should ensure that the data collected is evaluated and used to assess progress in implementing the crc and the rights of the child, this in order to identify problems and to inform all policy development for children.41 The problem of violence against children persists in large scale in South America. This is confirmed by research in which more than 70 per cent of children and adolescents interviewed reported having experienced some sort of violence.42 However, such data shows, too, that while children are able to recognise and express it when they are victims of violence, appropriate bodies or spaces for complaints are not always available; this leads to under-reporting – that is, a situation in which cases of violation are not documented – and makes it impossible for the full extent of the problem to be known. For instance, mechanisms such as hotlines and specialised bodies are not yet accessible to all children. In general, there is a lack of systematic national data collection in South America. Most information on violence against children comes from governmental bodies such as the judiciary, the police and the ministries of social 40

41 42

‘Such plans should include children, parents, service providers and others, and use a range of methods such as interview studies, improved reporting and registration systems and investigation procedures, and regular surveys, with particular attention given to vulnerable groups of girls and boys. (…) All countries must increase their capacity to monitor deaths, injuries and behaviours associated with violence against children to determine whether the problem is getting better or worse, and the association between these trends and various strategies for prevention.’ Independent Expert for the United Nations Secretary-General’s Study on Violence against Children World Report on Violence Against Children (2006) 23. Committee on the Rights of the Child, General Comment No. 5 (2003) on the general measures of implementation of the crc (arts. 4, 42 and 44, para. 6), para. 48. This is the case of the national survey taken in Chile in 2008, Primera Encuesta Nacional de Victimación por Violencia Intrafamiliar y Delitos Sexuales Ministerio del Interior, which found that 72.3 per cent of the interviewed children stated having suffered a form of violence. Another survey, in Bolivia in 2009, Investigación Violencia contra la Niñez en Bolivia INE-Unicef, shows that 83 per cent of children have received various kinds of punishment by family members that amount to a form of abuse.

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assistance and health. Although such bodies have fulfilled the role of main ­producer of data on violence in such countries, there is no systematisation of, and regularity in, the collection of such information, nor a specific focus on v­ iolence against children. Frequently the data come from different sources, with varied forms of collection, indicators and methods of analysis being used. Thus, the data are often used only by the information-producing body; conversely, it is not possible for other institutions to disaggregate and use such data.43 In the ten countries in the study there are national statistics institutes which produce different data and indicators for disaggregation. The institutes are responsible for most of the reliable data related to children; nevertheless, the data seldom concern violence against children and violations of children’s rights. While the data are used to inform public policies that target the most vulnerable territories and social groups, children who are or have been victims of rights violations are not always prioritised. Furthermore, such institutes are not always linked to the bodies in charge of formulating public policies for children. This increases the lack of integration of information systems and does not allow more effective results for the improvement of the state performance in combating violence. The main difficulties in integrating systems and databases in the region relate to the impossibility of undertaking comparative analyses and analyses over different periods of time.44 In particular, large gaps are apparent in the production of data concerning child trafficking, the sexual exploitation of children, children living on the streets, children involved with drug trafficking, and child domestic labour. This is due to the fact that either few data sources are available, or, if they are, the data produced are not reliable. In turn, this is so because the data collection requires in loco research in places that are difficult to access or because there is only a limited number of informants. Moreover, the vulnerabilities to which indigenous people, people of African descent, and children dwelling in rural areas are exposed are largely ignored. Information about these groups, when available, is not always sufficient or used in the formulation of public policies that meet their specific needs. The development of public policies more adequate to the local reality is frequently hampered by the lack of technical expertise in territories far from 43

44

Given the lack of available official data in countries such as Bolivia, Colombia and Venezuela, this research was based mostly on informal data, academic studies, journalistic material and extra-official reports from ngos. Inter-American Children’s Institute of the Organisation of American States Guía Sis­ tematización de la Información sobre Derechos del Niño (2004).

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large urban centres: it is quite difficult to find professionals who are able to work with information systems, data and indicators geared towards formulating public policies that focus on these territories. Among the settings where violence against children may occur are care institutions and justice systems,45 yet in these cases there is a lack of data about violence perpetrated by personnel or inmates. Juvenile justice systems in South America are in place for children aged between 13 and 18 years. Even though these institutions should be responsible for providing safety and resocialisation for children deprived of liberty, they are known as places in which the most serious rights violations are committed, including, for example, cases of torture. The surveyed countries do not have disaggregated data per sex, age, place of residence/geographical area, race or ethnicity, social and economic status, type of offence and type of punishment. The absence of information is an obstacle to the development of public policies aimed at reducing the involvement of children in crime. Another large problem in this regard is the almost complete lack of complaints mechanisms46 in case of violations of the rights of child inmates. For instance, there are no telephones available, and visits of lawyers and counsellors are not always frequent. ngos are almost exclusively responsible for monitoring places of detention, and when abuses come to light the state agents who committed them are seldom held to account. However, it is important to highlight that initiatives to do with creating an integrated information system47 on the violations of children’s rights have indeed been taken. Colombia and Ecuador each has a national database on children and the violation of their rights, a database which, furthermore, is capable of disaggregating data. In Chile, Brazil and Uruguay, however, the data collected relate to specific kinds of right violations identified according to 45

46

47

See Committee on the Rights of the Child, General Comment No. 10 (2007) on children’s rights in juvenile justice; Inter‐American Commission on Human Rights Juvenile justice and human rights in the Americas (2011). Be it via hotlines, police or administrative procedures, or even compulsory notifications or mandatory complaints by health or social assistance public servants in cases of violence against children. In this chapter, an ‘integrated information system’ is taken to mean a specific dataset, the elements of which can be correlated with each other and analysed in combination, thereby enabling greater understanding of the context in which the child lives. These systems generally contain essential data about children such as age, sex, place of residence, socioeconomic status, religion, skin colour, kind of disability, school enrolment and whether the child is receiving any benefit from the government. The systems allow this data to be matched with other information concerning, for example, abuse and juvenile homicide rates. Data correlation of this kind enables detailed study of children’s profiles and the contexts in which they are most vulnerable to experiencing violence.

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the priorities of each state. Colombia maintains a database that contains the number of complaints, characteristics of the children and the conditions under which they are submitted. Since 2004 Ecuador has adopted a Standardised Management System which comprises information on children in different programmes and includes a set of standardised variables, with updating periods and pre-defined reporting formats. In spite of such efforts, though, the results are still scattered and scarce. Other noteworthy initiatives include the following: • In Chile, the Sole Recording and Intervention System for the Worst Forms of Child Labour is an intersectoral strategy in which a number of political and institutional players detect, record and coordinate actions against child labour. • In Brazil, the National Observatory of Human Rights of Children and Adolescents48 is a government initiative created in 2007 to gather and follow up on information about public policies focused on reducing violence against children. Another Brazilian initiative is the Information System for Childhood and Adolescence (sipia), created with the objective of systematising all services across the country provided to children whose rights have been violated; nevertheless, only 19 per cent of institutions offering such services present information to sipia, which leads to weak results. A further initiative is Brazil’s Adolescent Homicide Index (iha), which has been used to develop prevention policies; however, it is limited to municipalities with more than 100,000 inhabitants. • In Uruguay, the Information System for Maltreatment and Sexual Abuse (sipiav), created in 2007, is a tool for evaluating situations of violence reported by the affiliated ngos and contains information about children and their families. It is a system which allows follow-up on the entire intervention process, from the receipt of the complaint until the application of protective measures ends. It also enables the extraction of data such as characteristics of the victims; situational diagnosis; violence typology, frequency and history; number of complaints made; and information about the aggressor. The flexibility of the system has allowed the formulation of policies focused on the specific needs of victims of different kinds of violence.

48 See http://www.sdh.gov.br/assuntos/criancas-e-adolescentes/programas/observatorionacional-dos-direitos-da-crianca-e-do-adolescente-1.

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In addition, the participation of ngos and universities in research and investigation into violence against children should be emphasised; however, these institutions use alternative information sources that do not always allow for comparative analyses. ngos have advocated for the implementation of public unified and integrated data systems. Universities contribute with initiatives such as the Colombian Information System on Political Violence (sivel), which gathers information on the violence arising from the armed conflict, and the Observatory of Adolescents and Youth, which, run by the University of Buenos Aires, Argentina, compiles statistics and surveys about institutional repression directed against children and adolescents. However, the results presented by these initiatives are not always considered reliable sources for the development of public policies. International bodies have also provided data to states in the interests of demanding more effective action at the national level. For instance, data provided by the ilo are one of the main sources of information about child labour and have been used by South American countries when developing official indexes.49 5 Conclusion Twenty-five years after the adoption of the crc, states still fail in fulfilling the right of the child to freedom from all forms of violence. As stressed by the Committee on the Rights of the Child, states should take effective measures to prevent violence and the violations of human rights; assume their responsibilities to protect children and witnesses from human rights violations; investigate and punish those responsible; and meet their obligation to guarantee that child victims have access to redress not only at the national level but provincial and municipal levels as well.50 Five years after the wrvac publication, the Mapeo Región América del Sur enabled the identification of advances and obstacles in the implementation of the recommendations of the World Report in the ten analysed countries. Among the challenges found in this regard is that South America has not yet 49

50

At the time this research was undertaken, it was estimated that in Brazil and Colombia the number of working children exceeded 4.5 million and 2 million, respectively; in the latter, there are still an estimated 6,000 child combatants and 400,000 children employed in mining. See General Comment No. 13 (2011) Article 19: The right of the child to freedom of all forms of violence.

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prioritised children, nor has it properly addressed the problem of the violence they suffer. From a comparative analysis of what selected states in the region have done in response to the wrvac’s three main recommendations, it is evident that some progress has been made in developing normative frameworks and public policies. Nevertheless, the gathering of data on the relevant issues is unsatisfactory, as it is not done in a systematic and periodic way, and does not allow for disaggregated analysis of information, all of which is necessary for effective implementation and monitoring of such policies. Despite the numerous legislative reforms concerning violence against children in different environments, the national norms of South American states focus on the legal definition and criminalisation of violent behaviour, without necessarily adopting measures to prevent it and stop the cycle of violence from repeating itself. When it comes to establishing coordination mechanisms for public policies, states have developed long-term plans and policies to combat violence against children, but they do not adequately maintain the same strategies of governmental planning throughout different administrations. Another issue is the effective management of public policies. Matters such as defining specific objectives, selecting public targets, developing training programmes and establishing participative decision-making forums have not been formalised as part of the process of formulating, implementing and monitoring polices for children. The weakness is all the more pronounced in view of the fact that there are few large-scale governmental initiatives to develop systems for gathering statistics specifically on violence against children. Furthermore, while health, judicial and social assistance institutions do collect data about violence, it has not been possible to disaggregate it and use it to inform improved policy-making. In addition, South American policies do not invest enough in prevention strategies, as measures are taken only after children have been harmed. However, remedial measures require more time, resources and capacity than preventive ones, and also demand greater coordination of the different measures taken to combat violence against children. In this regard, the study identified the need to build a cooperative system among the various bodies involved in the issue of children and youth. Such a system should be comprised of the executive, legislative and judicial powers as well the different levels of government found in politically decentralised countries; at the same time, the system should avoid duplication of effort and the perpetuation of existing institutional gaps. To tackle the complexity of the problem, it is necessary to harmonise the legal and political framework with the administrative system’s capacity, taking

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into consideration the need to provide victims and their families with prevention, protection and assistance as well as the need to strengthen the powers of the local bodies and the network of care for children; the aim of such efforts is the implementation of governmental plans and laws. In line with the priorities of the mandate of the Special Representative of the un Secretary General on Violence against Children, it is necessary that there be further follow-up on the implementation of wrvac recommendations. Moreover, civil society, governments and international bodies must continue to work together, as they did with the wrvac, in order to prioritise and raise awareness of children’s rights as well as guarantee the participation of children in decision-making processes that concern them. Bibliography Books and Reports

Arida, Ballesteros, Kamimura & Santos Mapeo Región América del Sur – Implementación de las Recomendaciones del Estudio sobre la Violencia contra los Niños y Niñas (2011) Núcleo de Estudos da Violência da Universidade de São Paulo, Movimiento Mundial por la Infancia – Capítulo Latino-americano y Caribenho. Available (in Spanish) at http://srsg.violenceagainstchildren.org/sites/default/files/publications _final/Mapeo%20Sudamericano%20Seguimiento%20UNVAC.pdf (accessed 15 March 2014). Economic Commission for Latin America and Caribbean Panorama Social da A ­ mérica Latina (2013) Santiago de Chile: Comisión Económica para América ­Latina y el C ­ aribe, available at http://www.cepal.org/publicaciones/xml/9/51769/­ PanoramaSocial2013.pdf (accessed 8 May 2014). Independent Expert for the United Nations Secretary-General’s Study on Violence against Children Report of the Independent Expert for the United Nations Study on Violence Against Children (A/61/299) (2006). Inter‐American Commission on Human Rights Juvenile justice and human rights in the Americas (2011). Instituto Interamericano del Niño Prototipo Base Sistema Nacional de Infancia (2003), available at http://www.iin.oea.org/IIN2011/documentos/Sistema_Nacional_Infan cia.pdf (accessed 6 September 2014). Instituto Interamericano del Niño Guía Sistematización de la Información sobre Derechos del Niño (2004), available at http://www.iin.oea.org/IIN2011/documentos/ sistematizacion.pdf (accessed 6 September 2014). Krug EG et al., (eds) World Report on Violence and Health (2002) Geneva: World Health Organisation.

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Lagos & Dammert La Seguridad Ciudadana: El problema principal de América Latina (2012) Latinobarómetro. Office of the Special Representative of the Secretary-General on Violence against Children Toward a World Free from Violence: Global Survey on Violence against Children (2013). Pinheiro PS World Report on Violence Against Children (2006) Independent Expert for the United Nations Secretary-General’s Study on Violence against Children, available at http://www.unviolencestudy.org (accessed 15 March 2014).

Reports and Policies of Governmental Bodies

Bolivia Informe Violencia contra la Niñez en Bolivia (2007) Fondo de las Naciones Unidas para la Infancia (Unicef) & Instituto Nacional de Estadísticas (INE), available at http://www.unicef.org/bolivia/spanish/resources_8796.htm (accessed 26 December 2014). Chile Encuesta Nacional de Victimización por Violencia Intrafamiliar y Delitos Sexuales (2008) Ministerio del Interior, available at http://estudios.sernam.cl/documentos /?eMTg1ODY1OQ==−Encuesta_Nacional_de_Victimizacintos/?eMTg1ODY1OQ== −rafamiliar y Delitos Sexuales, 6)=1 (accessed 26 December 2014).

General Comments

United Nations Committee on the Rights of the Child, General Comment No. 5 on the general measures of implementation of the CRC (arts. 4, 42 and 44, para. 6) (2003). United Nations Committee on the Rights of the Child, General Comment No. 10 on children’s rights in juvenile justice (2007). United Nations Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard (2009). United Nations Committee on the Rights of the Child, General Comment No. 13 Article 19 on the right of the child to freedom from all forms of violence (2011).

Internet Sources

Brazil Observatório Nacional de Direitos Humanos da Criança e do Adolescente, available at http://www.obscriancaeadolescente.gov.br/index.php?option=com_conten t&view=article&id=138&Itemid=71 (accessed 6 September 2014). ILO NORMLEX Information System on International Labour Standards, available at http://www.ilo.org/dyn/normlex/en/f?p=1000:12001:0::NO::: (accessed 30 August 2016). United Nations Treaty Collection Database, available at https://treaties.un.org/Pages/ Treaties.aspx?id=4&subid=A&lang=en (accessed 30 August 2016).

Miscellaneous

United Nations Office on Drugs and Crime Global Study on Homicide 2013: Trends, Contexts, Data (2014) Vienna: United Nations Office on Drugs and Crime.

chapter 42

Listening to Children and Parents: Seven Dimensions to Untangle High-Conflict Divorce Sietske Dijkstra1 Abstract Divorce is a common and complex phenomenon with high social impact, especially when it involves pervasive conflict. This chapter discusses an analytic content-based framework for gaining an in-depth understanding of divorce. It considers seven interrelated dimensions: time, conflict, relationships, violence, systems, cooperation and communication. Each dimension can be further related to the exacerbating factors of addiction and psychiatric illness. This analytical method points the way to de-­ escalating domestic conflict and sometimes intimate violence after divorce by listening to and properly interpreting the voices of children and parents. Partner violence and controlling behaviour before, during and after divorce can arise from the struggle of one partner to attack and diminish the other, or by both partners contending for power as the family breaks up. The resulting conflict can disrupt the parental partnership in ways that traumatise them and interfere with their children’s right to grow up in safe surroundings, nurtured and guided by both parents. Social professionals who respond effectively are able to look beyond stereotypes to sense the unique and subtle patterns underlying the intense and persistent discord characteristic of high-conflict divorce. Only when the particular aspects of those patterns are understood and properly addressed can (co-) parenting be restored to assure the children of post-divorce safety and well-being.

1 Introduction Nowadays in the Western world one in every three marriages ends in divorce, and that sad ratio rises to almost one in two when non-marital partnerships are included. As a result, each year in the Netherlands around 60,000 minors who 1 I wish to thank Jack de Swart, lecturer in youth policy at Windesheim, and Katinka Lünnemann, of the Verwey-Jonker Institute, for our sparring conversations in 2014 about integrating parents’ and children’s voices into the process of divorce to minimise further harm; and James Clement van Pelt, for his help in translating this chapter into English.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_043

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once lived with both parents face the end of the family life they have always known.2 Divorce is a family crisis revealing the vulnerability of intimate relationships. Old relationships end and new ones usually have to be established; ex-partners have to find new ways of parenting and living, as do the children. Abrupt and radical changes in living arrangements can affect children in ways that put into question how and with whom they are to spend their daily lives. That can undermine their faith that they will continue to be protected, supported, educated, and sheltered by both parents.3 Although the rights of children include the right to grow up safely within families and to be guided and nurtured by their parents, those rights can slip away when the divorce process causes an escalation in anger and conflict. Too many children, teenagers, and adults feel their loyalties torn between parents. Loyalty issues are not in the best interests of the child.4 ‘Learn to look through the eyes of your child’ is the advice offered by child therapist Marsha Pinedo to both parents and social-service professionals. Now in her forties, Pinedo was only three years old when her parents were divorced. Being caught in the middle, or overlooked entirely, led her to establish Villa Pinedo, a residential programme designed to give children and teens a voice in determining their future. There they learn ways to counsel divorced parents about how to better meet their needs. The Villa’s website, www.villa pinedo.nl, explains that children ‘are experts from experience. They know exactly what’s difficult and sad, or fine and safe in a divorce situation.’ Activities include making films, writing a powerful letter addressed to all divorced parents, and telling their life stories. Using their own perspective, the youngsters are coached to give divorcing parents do’s and don’ts about how to maintain more positive attitudes and constructive interactions. In this way, parents improve their relationships in ways that create growing space for the children. In the Villa Pinedo programmes, children are given opportunities to share with their parents how it feels to live in two homes, and how upset they feel when their parents are not on speaking terms or quarrelling about money or custody. One 11-year-old girl is quoted on the Villa Pinedo website: ‘It hurts if my parents dislike each other so much, because it means they do not accept at least half of me, since I am a part of both of them.’ 2 Spruijt E & Kormos H Handboek Scheiden en de Kinderen: Voor de Beroepskracht die met Scheidingskinderen te Maken Heeft [Handbook of divorce and children: For the professional who has to deal with children in divorce] (2014) 22. 3 Spruijt E & Kormos H Handboek Scheiden en de Kinderen: Voor de Beroepskracht die met Scheidingskinderen te Maken Heeft [Handbook of divorce and children: For the professional who has to deal with children in divorce] (2014). 4 Pinedo M & Vollinga P Aan Alle Gescheiden Ouders: Leer Kijken Door de Ogen van je Kind (2013) 60–73.

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Empowering the children of divorce can be an important source of psychoeducation for their parents: it can raise the awareness of other children in divorce situations. But that rather fashionable view comes with an important caveat: it is important to embed children’s voices in context, to interpret them carefully, and to listen to parents as well. The safety of children (and partners) comes first, especially when abuse is suspected, but that principle must be balanced by the fact that children have active imaginations and sometimes immature definitions of what constitutes the truth. Not everything they say should be taken literally and acted upon accordingly; communication and clarification are always needed for insightful evaluation. Divorce can bring immense changes to each divorced parent’s way of life. After their legal separation they may come under the terms of custody arrangements that turn them into co-parents, single parents, or even step-parents with children from a relationship with a new partner. They may move to different neighbourhoods, occupy smaller residential spaces, have less money to spend, and see their children only at certain times on specific days rather than in the natural flow of their lives together. Such changes add to the complexity of living arrangements for both children and parents, so that clear and open communication between parents and among parents and their children becomes all the more essential. Yet that very relational complexity hinders effective communication and sets the stage for an escalation of conflict. Mark Tuitert, the former Dutch Olympic skater, serves as an ‘ambassador’ (spokesperson) for Villa Pinedo. His parents were divorced when he was 19, creating an emotional situation he describes as terribly negative. As the oldest son, he was caught in the middle of his parents’ conflict, and broke off all contact with his father for about six years. After a long period of reflection on what happened to his family, he advises: The child is often the only one who says sensitive things during a highconflict divorce. Set aside your emotions as a parent, keep communicating with each other, and listen to the voices of the children.5 2

Background, Relevance and Focus

In the Netherlands, Denmark, England and other Western countries, divorce laws have recently changed to spell out new rights and obligations of parents 5 Lenssinck A ‘Afscheid nemen van dat intense gevoel is moeilijk: Interview met Mark Tuitert’ [Saying goodbye to that intense feeling is difficult: Interview with Mark Tuitert] de Tijd, Trouw September 6, (2014) 32–5.

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after separation. Those laws establish joint custody as the norm, obligating ex-partners to cooperate in their post-divorce parenting. Before the household breaks apart, the partners are required to agree on a parenting plan that stipulates in detail who is to do what and when, and how the children are to be cared for, thus specifying clearly the terms for alimony and the division of labour. These legal changes, known in the Netherlands as the Rouvoet law, have resulted in more co-parenting. Contrary to expectations, however, the coparenting requirement can force ex-partners to continue interacting with one another regularly over contentious matters, which vastly increases the likelihood of heightened frequency and severity of conflict, as found by a recent evaluation.6 High degrees of conflict during and after divorce have created serious problems in youth care and child protection. The youth care agency must make difficult and sometimes controversial decisions about child contact and visitation. Such decisions are not always well-grounded in what is best for the custody and care of the children.7 Agencies in several countries report problems in which polarisation and conflict result in increased confrontation involving lawyers and court proceedings. Sometimes this polarisation is the prelude to ongoing violence, with significant injuries and multiple calls to the police and child protection services. Worst of all, conflict can escalate to a fatal outcome when a parent murders the partner and/or the children.8 Another issue identified in at least 10 per cent of complex cases is parental alienation,9 where one parent enlists the children in a campaign to bully the other parent into submission or collapse, doing so by manipulating the children into joining them in sabotaging their relationship with the other parent or undermining parental authority.10 Estrangement of children is based on realistic situations as neglect, abuse and unfit parenting. Often overlooked by professionals, parental alienation must be considered as a type of abuse often 6 7

8

9

10

Voert MJ & Geurt T Evaluatie Ouderschapsplan: Een Eerste Verkenning [Evaluation of the parenting plan: A first exploration] (2013). Dullaert M Is de zorg gegrond? Analyse van het feitenonderzoek aan de basis van ingrijpende jeugdzorgbeslissingen [Is the care grounded? Analysis of research effects based on difficult decisions of youth care] (2013). Dijkstra S & Verhoeven W ‘Gescheiden werelden en gespannen verhoudingen: Ouder­ schap na scheiding en geweld met dodelijke afloop’ [Separate worlds and tense relationships: Parenting after divorce and fatal violence] (2014) 1 Maatwerk 2–6. Spruijt E & Kormos H Handboek Scheiden en de Kinderen: Voor de Beroepskracht die met Scheidingskinderen te Maken Heeft [Handbook of divorce and children: For the professional who has to deal with children in divorce] (2014). Radford L & Hester M Mothering through Domestic Violence (2006).

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involving psychopathology, a hostile, aggressive form of parenting that entails rejection of the other parent. As with bullying, the poisoning of the fundamental parent–child bond can inflict long-lasting harm on the development of children’s emotional intelligence and their ability to empathise with and respect others. The parent who perpetrates this form of emotional abuse out of self-righteousness or vindictiveness strives to • reprogramme each child to view the rejected parent as unloving, uncaring, and unavailable; • limit the contact of each child with the victim parent; • erase the victim parent from their lives, feelings, and thoughts, and to replace the rejected parent in each child’s mind; • encourage the child to betray the rejected parent’s trust; and • undermine the parental authority of the rejected parent and his or her ability to counsel and guide the children.11 3

Learning from Complex Cases

Social work professionals use umbrella terms such as ‘high-conflict divorce’, ‘complex divorce’, or even ‘fighting divorce’ (vechtscheiding in Dutch literally means a ‘divorce battle’). The image of a ‘fighting divorce’ with two ex-partners punching it out over the heads of their children is sometimes accurate, but taking other factors into account – such as past violence, a psychiatric issue, or a legal conflict – could yield a more complex picture. At the same time, the interplay of so many factors tends to obscure the shifting power dynamics under the surface, so that it becomes unclear who has done what to whom.12 For this reason the term ‘complex divorce’ seems more useful than ‘high-conflict divorce’ and ‘fighting divorce’. The complexity and conflict conveyed by each of these terms emerge from relational patterns that vary with each situation. Complexity has a different composition in every complex case. Multiple layers of complexity build up over time and are likely to remain entangled unless some form of intervention disrupts the patterns so as to help one or both ex-partners make fundamental changes in how they relate to one another and to their children. 11 12

Baker AJL & Fine PR Co-Parenting with a Toxic Ex: What to do When Your Ex-Spouse Tries to Turn the Kids Against You (2014). Hester M ‘Who does what to whom? Gender and domestic violence perpetrators in English police records’ (2013) 10 European Journal of Criminology 623–37.

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To better understand how to respond in timely and effective ways, professionals need greater insight into how they can accurately perceive and appropriately appreciate the myriad patterns of complex divorce and the dynamics of post-divorce struggles. The costs of complex divorce are high and long-­ lasting, especially in regard to custody and child contact. Decisive intervention is imperative when partner violence or child abuse has been detected. This means professionals must be on the alert for power imbalance, manipulation and intimidation, whether these occur prior to or after the divorce ruling.13 To gain insight, professionals can explore and apply theoretical concepts and models developed from actual cases. One such model, developed by the author and explained in this chapter, identifies seven dimensions of complex divorce: time, conflict, relationships, violence (especially that related to ­addiction and psychiatry), systems, cooperation, and communication.14 Each dimension is a building block for a model that encompasses multiple components: not just the relationships of parents and children, but also youth care and social professionals, the legal system, and even the police when behaviour crosses into violent expression. The idea of dimensions helps professionals envision a divorce relationship as an often dysfunctional system with numerous overlapping and interpenetrating components, like a multidimensional puzzle that must be understood and then untangled layer by layer. Using the model, this chapter explores several especially difficult divorce cases from the perspectives of parents, children, and professionals. Along with professionals from youth care and child protection services, lawyers and judges can be involved in the resolution of conflicts over the question of in which household, or even country, the children of a divorced couple should be raised. Evaluating the accusations of ex-partners about the well-being and safety of their children often calls for a multidisciplinary approach in which the seven dimensions can help guide the evaluation. How these multiple perspectives and interdisciplinary responses can be coordinated is explored during a regular three-day course on complex divorce 13

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Johnson M Intimate Terrorism, Violent Resistance, and Situational Couple Violence: A Typology of Domestic Violence (2008); Radford L & Hester M Mothering through Domestic Violenc (2006); Dijkstra S ‘Knellende maatschappelijke normen over ouderschap: Escalatie bij vechtscheiding nader beschouwd’ [Strict societal norms for parenting: A closer look at escalation in high-conflict divorce] in Van der Pas (ed) Hoezo probleemouders? Tien Opstellen Over de Ongemakkelijke Relatie Ouders-Maatschappij [Why problem parents? The uneasy relationship between parents and society] (2014). Dijkstra S Vechtscheiding als complex vraagstuk van de-escalatie. Verkenning van zeven dimensies van het probleem [High-conflict divorce as a complex problem of de-escalation], centrale lezing, werkconferentie Uit de houdgreep, Taskforce, 27 May 2014, Utrecht.

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developed and presented by the author. Thus far, about a hundred youth care and child protection workers have participated, reflecting at length on a case they selected based on five analytical questions:15 1 2 3 4 5

What has happened, and according to whom? What can happen in the near future? How probable is it that this will happen? How severe are the consequences likely to be if this does happen? On a scale from zero to ten, what is the score for danger from those consequences, and how is that score explained?

When a couple decides to end their domestic partnership, issues such as the division and disposal of jointly held property and marital assets, alimony, and other financial arrangements can be the subject of severe conflict. When children are involved, a divorce is considered high-conflict when the parents ­become entangled in struggles over custody, child support the children’s upbringing, especially so if the struggles are protracted and each partner’s position is fixed and resistant to compromise. The conflict might start before the actual split and continue afterwards, or it might surface when one of the expartners initiates a new intimate relationship. This is what happened with a divorced mother whose ex-partner had custody of their daughter on weekends. She complained, ‘My baby always comes back to me smelling of his girlfriend.’ A divorce involving children is considered complex when the conflict is persistent and makes the children pawns in the ex-partners’ power struggle, often extending to other family members, new partners, and sometimes their social network and even their employment settings. Such conflicts are magnified when judicial procedures are invoked. A complex divorce can arouse intense emotions in any of the people involved. Anger, loss, hurt, distrust, jealousy, envy, rage, revenge, bitterness, and despair can be displayed or smoulder beneath the rational surface like a peat moss fire. Those emotions are difficult to regulate in parents and even more so in children, impairing the psychological and situational factors that serve as buffers between them. Such buffers can provide a space for perspective to enable ex-partners to reflect on the overall parenting situation and how they could contribute in positive or negative ways. This is known as the m ­ eta-position in parenting, or the parental position.16 15 16

Munro E Effective Child Protection (2002). Van Der Pas A Handboek Methodische Ouderbegeleiding: Eert uw Vaders en uw Moeders [Handbook of methods for guiding parents: Honour your fathers and mothers] (2005).

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Losing that perspective can lead to serious disruptions draw everyone i­ nvolved into the vortex of conflict – even the professionals charged with ameliorating the situation. The result can be a kind of tunnel vision:17 first, rationality shuts down, then alternative reasoning that would normally propose less negative evaluations stops, at which point the only possible truth seems to be the most negative explanation. Life can become unbearable and filled with despair, inspiring a lust for revenge and a desire to harm the other at any cost. The result can be fatal. 4

Patterns of Conflict over Children: Three Cases18

Amber and John, both in their mid-thirties, broke up after only a few dates. Soon afterward Amber discovered she was pregnant. She decided on her own to go through with the pregnancy and raise the baby by herself. When, in her seventh month, she told John about her decision, he demanded to know whether he was the father. Amber said she could not be sure because she had been dating another man around the same time. When she made it clear to him that she intended to raise the child on her own, John felt that she was deliberately excluding him. He considered the possibilities for more active fatherhood and sought the help of a lawyer, who informed him that he could demand a dna paternity test; a positive outcome would give him custody rights. John followed that advice, was indeed proven to be the father, and was granted visitation rights every other weekend with his daughter. But Amber and John have heavy and continual disagreements over the care of their child, aged 3 years old. Amber believes his lack of child-care experience renders him unfit to care for a young child. The lawyer thinks he has done good work for his client, but the relationship between the ex-partners has become rather grim, which cannot but affect their child in negative ways. The next case concerns Sarah and Josh, who are the parents of 5-year-old Marlies. They divorced when she was two, and Sarah was awarded full custody and responsibility for raising her. Six months later she accused her ex-partner of sexual abusing Marlies.19 Her only substantiation for that accusation is her testimony that her daughter is behaving in sexually inappropriate ways and is very afraid of her father. On that basis she petitioned the court to cancel 17 18 19

Munro E Effective Child Protection (2002). In these cases, identifying details have been altered to protect the anonymity of the persons concerned. Merkelbach H ‘Een valse aangifte: Waarom recherchepsychologen belangrijk zijn’ [A false allegation: Why police psychologists are important] (2015) De Psycholoog January, 40–8.

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his visitation rights and bar all further contact between them. Josh has petitioned several times for a court order for custody. The tensions of the conflict are accumulating: they are no longer able to make appointments on weekends and holidays unless scheduled by the court. The mother refuses to inform the father about their daughter’s development, such as her experiences at school. Mediation was broken off by the father. Recently there has been a family group conference and youth care has become involved. The professionals express concern about the divided world in which Marlies is living and its negative impact on her long-term well-being. In the third case, Annabella and Mark fell in love when Mark was engaged in a project in Brazil; Annabella is Brazilian and Mark is Dutch. Three years after marrying, they moved to the Netherlands. There, three children were born – two sons and a daughter. Six years ago the couple was divorced, and since then they have had many conflicts over child care and custody. For the past three years the children have been under youth care surveillance. Annabella took refuge in a shelter seven years ago because her partner physically assaulted her and was shouting and threatening her and the children. His behaviour was especially aggressive when he had been drinking. She reports she is still afraid of him and considers him a danger to the children. The eldest son, Gijs, 15 years old, often follows his father’s example by being rude and aggressive toward his mother and siblings, and is at risk of dropping out of school. As for the girl, aged 9 years, her school reports that she is very withdrawn; the youngest boy, 12 years old, is wetting his bed. Annabella has difficulty handling her sons, especially Gijs, who recently left her home, saying he is fed up with his mother’s moody behaviour and wants to live only with his dad. Mark is using this as an argument to support his allegation that she is an unfit mother. None of the children is interested in talking with professionals or getting other kinds of help, even though all three are behind at school. Their teachers find it difficult to confer with Annabella because of language differences and also because she feels accused and reacts defensively and with strong emotions. Mark claims that Annabella has a psychiatric disturbance that adversely influences the children. He wants to have full custody over the children so he can raise them with greater firmness. Annabella thinks he is excessively strict and wants to continue raising them herself. To summarise: • The case of Amber and John demonstrates how people who have almost no relationship experience with each other can nonetheless face the challenge of being parents, due to a legal consent decree. • The case of Sarah and Josh raises the issues of false allegations and the denial of sexual abuse when small children are involved.

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• The intercultural case of Annabella and Mark introduces multiple issues, and suggests how the co-morbidity between abuse, addiction, and psychological issues of the parents affects the children deeply and calls for multidisciplinary involvement by professionals. • All three cases underline the importance to professionals of obtaining a deep and interdisciplinary understanding of the experiences of the children even when the latter are too young to have voices in the figurative sense. 5

Stuck Cases and an Answer to Escalation

Despite their best and most patient efforts, social professionals – youth care workers, judges, mediators, guardians, teachers, lawyers, therapists, and specific pedagogics, among others – often feel that complex divorce cases are ‘stuck’, with no clear path to progress toward healing. Professionals can feel themselves under considerable pressure to help partners find ways to de-escalate their negative emotions and destructive intentions. Inter-agency work toward de-escalation can suffer from the dominant position of the judicial system, whose dictates can override the plans of the various service providers.20 Yet sometimes professionals unintentionally contribute to escalation. Youth care agency professionals can feel frustrated when their mandate to pursue the best interests of the children leads to blaming one or both parents for their distress. Yet in advocating for the children’s interests, these professionals may be constructing a frame of escalating parental conflict that obscures significant power imbalances and manipulation related to prior or current abuse. Such a constructed frame can hide the professionals’ own feelings of disempowerment and insecurity about how they should support the children. In their distress and grief, both parents and children can react like ‘wounded animals’ with ‘fight, flight, or freeze’ responses. They express and transmit their entrapment in the conflict using fixed and negative categories. An example from the course involves a boy of 13 who went to court because he wanted to live with his father but had not taken the time to discuss his preference with his mother; in another case, a girl of the same age felt neglected now that her mother had a new boyfriend. A third example involved two teenage siblings who spent their time texting with their father as soon as they were in their mothers’ house, excluding her completely and extending his presence into 20

Groen M Botsende systemen: reflectie expertmeeting vechtscheiding [Clashing systems: Reflections from a meeting of experts in high-conflict divorce] 20 November 2013, Den Haag; Groen M & Van Lawick J ‘Vechtscheidingen’ [High-conflict divorce] in Intieme Oorlog: Over de Kwetsbaarheid van Familierelaties (2013).

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her home although he was physically absent. Recently, researchers addressed this absent presence of the abusive partner as an important concept in understanding problems in mother-child relationships.21 The dynamics of parental alienation can be obscured even to professionals when they give sole credence to what the children have to say. Situations may seem black-and-white to adolescents, who can be very susceptible to issues of loyalty and alienation.22 For their part, parents can suffer from the hot/cold empathy gap: during periods of high tension, their hot and often escalating emotions take over from their rational, more understanding and empathetic viewpoint, while during periods of cold detachment their rationality lacks any compassion. De-escalation needs to be the focal point in treating complex cases. To achieve that goal, professionals need to see further, more clearly, and in more dimensions. Each case has its own unique key for unlocking the door to deescalation; the same thing that stokes the fires of escalation in one case can bring about de-escalation in another. In a recent developed group intervention, called ‘Children in the Fix’, the therapists formulated two conditions for divorced couples and children to participate in the group intervention: they have to pledge to cooperate as parents and to stop judicial lawsuits. These criteria can be helpful in de-escalating conflicts, normalising parental behaviour and repairing the children’s sense of safety,23 but they might not be the right fit for all and could mask violence in the partner relationship or overlook power gaps.24 The master key for initiating a process of de-escalation is to know when and how a complex divorce can be brought into the rational and emotional ranges of an ordinary divorce in which relationships can heal over time. To know that, the causes underlying a high-conflict case must be explored with a special focus on the plight of the children, including the possible presence of child (sexual) abuse and partner violence prior to the divorce.25 21 22

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Thiara RT & Humphreys C ‘Absent presence: The ongoing impact of men’s violence on the mother-child relationship’ (2015) Child and Family Social Work 1–9. Spruijt E & Kormos H Handboek Scheiden en de Kinderen: Voor de Beroepskracht die met Scheidingskinderen te Maken Heeft [Handbook of divorce and children: For the professional who has to deal with children in divorce] (2014). Van Lawick J & Visser M Kinderen uit de Knel: Een Interventie voor Gezinnen Verwikkeld in een Vechtscheiding [Children in a fix: Intervention for families embroiled in a fighting divorce] (2014). Dijkstra S ‘Kinderen uit de knel: Boekbespreking’ [Children in the fix: Book review] (2015) 5 Maatwerk 25–6. Radford L & Hester M Mothering through Domestic Violenc (2006); Dijkstra S ‘Slaan uit macht en onmacht: Mannen leren in groepswerk praten over het geweld en hun relaties

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Every case has a somewhat different pattern as to which issues are the most significant, but the tangle of emotions and power dynamics can make that pattern hard to discern. A helpful framework for untangling the issues producing a complex divorce is provided by reviewing and evaluating seven different dimensions of the situation, from the perspective of each participant. When each dimension is considered separately, it can serve as a stepping-stone towards a plan for untangling the conflicts in a logical order of priority. 6

Seven Dimensions of Complex Divorce

To hear the voices of children, to listen to parents caught up in a complex divorce, and to accurately evaluate what they have to say, a detailed understanding of the layers of conflict is essential. A model based on seven dimensions has emerged from the work of the author.26 Each dimension takes a different perspective, enabling professionals to separate and untangle the various levels of complexity. The seven dimensions are: (1) time, (2) conflict, (3) relationships, (4) violence (with co-morbidity), (5) systems and their interaction, (6) inter-agency cooperation, and (7) communication that leads to a common mindset, a metalanguage, and a de-escalation repertoire for both professionals and families. A brief discussion of each dimension follows below. Time is the first dimension, for good reason: factors relating to timing, crisis, preparation, skilful cooperation, and the use of momentum can be critical and of the highest priority. During a three-day course presented for professionals by the author, one participant reflected on what she learned from the selected case: ‘We have to think very thoroughly and carefully about how the conflict begins, and especially how to address the parents, since that will determine in significant ways how the case will unfold.’ In urgent and dangerous cases, regard for time can literally save lives. When time is critical, intervention must be as intense as required but diminish as

26

met vrouwen en kinderen’ [Battering from power and powerlessness: Men learn in group work to talk about violence and their relationships with women and children] (2011) 20(3) Journal of Social Intervention: Theory and Practice 59–76; Lünnemann K, Hermens N & Roeleveld W Mannen over partnergeweld en vaderschap: Een exploratief onderzoek. [Men talk about partner violence and fatherhood: Explorative research] (2012). Dijkstra S Vechtscheiding als complex vraagstuk van de-escalatie. Verkenning van zeven dimensies van het probleem [High-conflict divorce as a complex problem of de-escalation], centrale lezing, werkconferentie Uit de houdgreep, Taskforce, 27 May 2014, Utrecht.

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soon as possible. Developing a timeline of the relationship can be a valuable aid for revealing patterns associated with significant dates – the onset of the marriage, births and other milestones of the children’s lives, dates when conflicts emerged, milestones toward and through divorce, the duration of the divorce, the juridical procedures, and other significant events in the relationship. Conflict, the defining feature of a divorce gone wrong, is the second ­dimension and next in importance. Friedrich Glasl provides a useful way of classifying conflict via his ‘escalation ladder’, with its nine rungs and three phases.27 First comes the win-win phase, when ex-partners can still listen to and appreciate each other’s arguments. In the second phase, win-lose, the conflict increases and polarisation of the positions of each partner sets in, leading to more fixed and judgmental opinions in which energy, time, and money are devoted to proving that one partner is completely right and the other is completely wrong. In the final phase, lose-lose, the struggle has deeply corroded rationality to the point that a partner may be willing to lose even if just to cause the other partner to lose as well – the phase of greatest danger, with the most terrible outcomes.28 Relationships constitute the third dimension, taking into account the different perspectives, voices and viewpoints among parents and children; between ex-partners; between each ex-parent and his or her new partner; among children, stepchildren, and peers; and among grandparents, (grand)children, and extended family. A divorce, especially one that results in single parenthood, can impair the buffer processes of parenting that facilitate strongly positive relationships, as defined by Van der Pas: (1) society’s approval and support; (2) a fair division of labour; (3) the meta-position of parents that enables each one to reflect with a helpful degree of objectivity; and (4) rewarding parenting experiences.29 Professionals learn that they cannot take everything children say as literal truth, yet neither can they disregard or trivialise it: they must learn to contextualise and interpret the voices of children carefully since what they say could be distorted by anxieties related to the family’s changing circumstances, loyalty to one parent, and alterations in the family’s power balance. Sometimes 27 28

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Wikipedia ‘escalatieladder’, available at http://www.nl.wikipedia.org/wiki/Escalatieladder (accessed 13 January 2016). Dijkstra S & Verhoeven W ‘Gescheiden werelden en gespannen verhoudingen: Ouder­ schap na scheiding en geweld met dodelijke afloop’ [Separate worlds and tense relationships: Parenting after divorce and fatal violence] (2014) 1 Maatwerk 2–6. Van Der Pas A Handboek Methodische Ouderbegeleiding: Eert uw Vaders en uw Moeders [Handbook of methods for guiding parents: Honour your fathers and mothers] (2005).

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children are manipulated by a parent, but almost as often they do their own manipulating, even when they may not intend to. Adolescents in particular can exploit conflicts to make an independent move, taking a distant or indifferent pose toward one parent and showing alienation of affect, as in the case of teenager Gijs in the third case discussed above. Gijs has come to dislike his ‘weak’ mother and to prefer to live with his ‘strong’ father. When one or both parents acquires a new partner, the fragile equilibrium can be disrupted, reviving old relational power issues between the ex-partners and leading to strains between new partners. Raising children in the new family constellation can become a polarising matter due to different backgrounds, house rules, and habits. Not surprisingly, 60 per cent of new partner relationships following divorce seem doomed to fail. A parenting plan that includes step-parents can help to create a strong new family.30 Partner violence is the fourth dimension. In particular, it concerns the relationship between, on the one hand, prior and ongoing violence by and against ex-partners, and, on the the other, post-divorce battlefields and continuing difficulties in child contact.31 Specific partner relationship patterns can be detected,32 as presented in Figure 42.1 below. The upper part of the circle refers to less serious cases in which the violence stops after the relationship ends, or when there is high motivation to stop the violence and continue the relationship. The lower part of the circle is far more complex, involving cases often seen at emergency centres and women’s shelters, in police reports, and in referrals to child protection services. In the third category (lower left quadrant of the circle), the relationship comes to an end but the violence and controlling behaviour continue.33 30

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32 33

Haverkort C, Kooistra M & Hendrikse-Voogt A Hoe Maak je een Succes van je Nieuwe Gezin? Stiefplan, Tips en Tools voor het Samengestelde Gezin [How to make success of your new family? Step-parent plan, tips and tools for the stepfamily] (2012). ‘How can we learn to de-escalate high conflict divorce after intimate partner violence?’ was a topic addressed at The Third World Conference of Women’s Shelters November 2015, published in the newsletter and the website, now available at http://www.worldshel terconference.org/en/news/achieving-post-divorce-safety/42/. See Johnson M Intimate Terrorism, Violent Resistance, and Situational Couple Violence: A Typology of Domestic Violence (2008). Shepard MF & Hagemeister AK ‘Perspectives of rural women: Custody and visitation with abusive ex-partners’ (2013) 28 Affilia: Journal of Women and Social Work 165–76; Dijkstra S ‘Slaan uit macht en onmacht: Mannen leren in groepswerk praten over het geweld en hun relaties met vrouwen en kinderen’ [Battering from power and powerlessness: Men learn in group work to talk about violence and their relationships with women and children] (2011) 20(3) Journal of Social Intervention: Theory and Practice 59–76.

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LISTENING TO CHILDREN AND PARENTS Violence stops

Violence continues Intimate terror

Violence stops Crisis intervention Guided return Relation stops

Relation continues

Relation stops

Relation continues Violence continues Intimate terror

Figure 42.1 Dimensions of high-conflict divorce – partner violence

­Johnson calls the violent relational pattern between partners who have a dangerous power imbalance ‘intimate terror’ or ‘coercive control’.34 In this pattern the dominant partner intimidates and controls his spouse in such a way that she feels weak, frightened, and dependent. Sometimes she is too scared to end the relationship (lower right quadrant) and tries to endure the fear and abuse because she feels that her life and the well-being of their children might be at stake if she were to leave. Coercive control by one parent can cause custody problems: children may refuse to see the aggressive parent – ‘I don’t want to see my father. Last time he hurt me and my mom’ – or may be drawn to identify with the stronger parent and join in the bullying abuse: ‘My mom is a real crybaby. I think my father deserves better.’35 Parental alienation against the less dominant partner can be a vicious variation of this abuse. It is well known that partner violence is frequently associated with a perpetrator’s psychological disturbances and/or addiction to alcohol and other substances; the term ‘co-morbidity’ is used by social professionals to indicate that partner violence may be accompanied by other severely dysfunctional behaviours. Systems and their interaction constitute the fifth dimension. This refers to the systems of relations between ex-partners and their extended families and social networks. The dimension also refers to the logic of institutional systems 34 35

Johnson M Intimate Terrorism, Violent Resistance, and Situational Couple Violence: A Typology of Domestic Violence (2008). Pels T, Lunnemann K & Steketee M Opvoeden na Partnergeweld: Ondersteuning van Moe­ ders en Jongeren van Diverse Afkomst [Parenting after interparental violence: Support of mothers and youth with diverse backgrounds] (2010).

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as they attempt to deal with high-conflict divorce and its toxic outcomes. Are the institutions dealing particularly with children and youngsters, with families, parents or with offenders and victims? Are they dealing with juridical procedures such as child protection? Is there a verdict or is the consultation voluntary? Consider how systems proliferate and interact when the conflict between ex-partners persists and escalates, putting the safety and well-being of the children at risk. Youth-care interventions may involve child protection services, which could recommend a change in custody arrangements. Family courts may then have to deal with the case, with lawyers for the various parties representing their respective interests. The court may declare that mediation is necessary. The outcome could be that the children see one of the parents under the supervision of professionals at the visitation centre. The logic of systems can greatly complicate the coordination of the case and its ultimate solution. In this regard, Hester uses a metaphor of three planets to highlight the contradictory perspectives of each of the systems that are involved in the effort to assure the safety of women and children when domestic violence occurs.36 She describes how the abused woman finds the police supporting her referral and making it clear to the perpetrator that physical assault is against the law. Meanwhile, the youth care agency has a serious conversation with the woman about the harm done to the children by their having witnessed the assaults, implying that she might lose custody as a consequence. In the divorce process, child protection services may get involved, defending the right of each parent to raise the children, in the course they may even overlook the prior violence. Hester concludes that the three agencies might as well be living on separate planets, and that the very different logic they each follow can lead to harmful outcomes. Inter-agency cooperation is the sixth dimension. To avoid living only on their own planet, agencies must work together in complex cases such as ­high-conflict divorce. To achieve a good result, many professions may need to work in concert. The list can include coaches, mediators, forensic experts, guardians, youth care workers, social workers, child protection services representatives, special curators, lawyers, judges, police, mental health workers, and professionals of visitation centres. The need for cooperation and coordination of treatment and enforcement challenges those in each profession to see the case from a bird’s-eye view so that they become aware of the larger and deeper context. Fragmentation of treatment and enforcement can lead to 36

Hester M ‘The three-planet model: Towards an understanding of contradictions in approaches to women’s and children’s safety in contexts of domestic violence’ (2011) 41 British Journal of Social Work 837–53.

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the outcome no one wants: escalation. Avoiding such fragmentation requires an investment in training to make professionals from many different agencies more aware of how their perspectives can blend in with, rather than contradict or compete with, the approaches of others involved in each case. Communication is the seventh dimension, always a paramount concern in dealing with high-conflict divorce. Good communication could be disrupted by raw negative emotions that shut down empathy and reason. Often quarrelling partners frame the facts of their situation to make themselves appear to be in the right, bringing certain aspects into the foreground while concealing others. So, in the third case described earlier, Annabella has framed the situation to highlight the violations of her ex-partner and his drinking, whereas he has framed it to support his allegation that she is an unfit mother because of psychological problems. It can become difficult for parents to benefit from the buffer of compassionate objectivity – the meta-position37 that enables them to step back from the conflict to reflect on their behaviour as parents. When professionals deal with these complex cases and communication is inadequate, they often fall victim to (counter) transference, causing them to report frustration, fatigue, irritation, and feelings of hopelessness and anger. Courage and perseverance in achieving good communication are required to meet this challenge, along with a way to unwind and an environment in which to do so. These seven dimensions provide professionals with ways to reformulate a complex case so that de-escalation becomes a realisable goal when they see new ways to untangle the layers of conflict. As that happens, a meta-language develops naturally among professionals working to resolve complex cases. Being able to speak together with deeply shared meanings can help bring about a common mindset that enhances their joint ability to cooperate successfully, and thereby strengthens their skilful performance in each particular case. 7

To Promote Post-divorce Safety and Growth (the new ‘we’)

‘Aftermarriage’ (nahuwelijk in Dutch) is a term coined by the journalist Djoeke Veeninga to designate the post-divorce relationship, one which often turns out to be longer in duration than the intimate partnership. Interaction between ex-partners rarely disappears once a divorce is decreed but carries on throughout the lives of their children, even their children’s children. When the couple 37

Van Der Pas A Handboek Methodische Ouderbegeleiding: Eert uw Vaders en uw Moeders [Handbook of methods for guiding parents: Honour your fathers and mothers] (2005).

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has no children, the relationships and experiences accumulated during their domestic partnership often continue to bind them together. Ideally, one objective of the divorce process is to set the stage for a harmonious post-divorce relationship – what the actors Susan Sarandon and Tim Robbins call ‘our conscious uncoupling’. The term refers to the act of ending a marriage or romantic relationship in a way which shows that the two people will remain friends and believe that this is a positive thing for their future lives.38 The fact that this is so seldom the result suggests deficiencies in how the divorce process is currently conceived and structured. By using ‘post-divorce relationship’ – a specific and neutral name given to life after divorce, one that embraces children, parents, and new partners – we honour the possibility that this new life can turn out to be more than an outgrown domestic partnership and divorce a transition that enlarges relationships rather than a defeat that ruins them. The post-divorce relationships of ex-partners or a family can be win-win for all, and for society in general, gui­ ding us toward a metaphor of growth rather than collapse, toward cooperation and enduring friendship rather than abusive, vengeful resentment. Complex divorce is the other side of that relationship and is called negative love, threatening the well-being of parents and their children. High-conflict divorce is not a single phenomenon but is characterised by many different patterns, each requiring in-depth analysis and thus in-depth research. Furthermore, the tendency of professionals to seek a one-size-fits-all approach must be resisted. Building a bridge from high-conflict divorce to more harmonious postdivorce safety involves finding stepping-stones for de-escalation. This means draining conflicts of their powerful emotional charge, and creating space for logical exploration, objectification and, hopefully, the resolution of differences. With de-escalation as the primary goal, we hence need pin-pointed and thorough comparative research. Given a more profound analysis, pathways to solutions can be studied on an international basis. When interventions can be tailored to the specifics of each case, consequences such as repetition, escalation of conflict and high material and immaterial costs can be minimised. Certainly the top priority is to deal effectively with divorce cases in which physical or emotional violence is inflicted before, during or after the final dissolution of the partner relationship. The violence and the power dynamics should be addressed in depth and not overlooked or minimised. Moreover, in order for professionals to perform skilfully, they have to acknowledge the legitimate needs of parents and children for support, and they have to bring their tacit 38 See http://www.macmillandictionary.com/buzzword/entries/conscious-uncoupling. html (accessed 25 January 2016).

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experiences with their own relationships into their work, keeping themselves attuned even to tiny non-verbal signs.39 (In this context, ‘tacit’ refers to one’s experiences below surface behaviours that can be described verbally.) The challenges of complex divorce illustrate the vulnerability and fragility of family relations, which are generally acknowledged as the foundation of society. Given that supreme importance, the need for greater investment to support the development of relationship skills throughout the general population seems self-evident. Because intimate relationships can be expected to change and develop as long as they endure, the first place to invest in developing relationship skills is at school. The key goals are to help ex-partners and their children, especially teenagers, recover from divorce, and to empower children to help them grow beyond it. Those skills are validated when the constructed language of struggle and war in relationships is replaced by the language of loss, affection, dialogue, compassion and respect, to untangle conflict in ways that liberate positive emotions such as appreciation, trust, and cooperation. This kind of professional and societal support demands a long-term commitment. Listening in accordance with the seven dimensions of complex divorce, as well as setting limits on how co-parenting should be conducted, can help untangle the different dynamics and give space to hear the voices of children and their parents. Being seen and being heard through the transition of the divorce is crucial for healthy, strong, resilient relationships from which a more compassionate society can arise. Bibliography Books

Baker AJL & Fine PR Co-Parenting with a Toxic Ex: What to do When Your Ex-Spouse Tries to Turn the Kids Against You (2014) Oakland: New Harbinger Publication. Dijkstra S & Van Dartel N Verborgen schatten. Wat goede professionals doen en cliënten ervaren bij de aanpak van huiselijk geweld [Hidden treasures. What good professionals do and clients experience dealing with domestic violence] (2011) Amsterdam: SWP. Haverkort C, Kooistra M & Hendrikse-Voogt A Hoe Maak je een Succes van je Nieuwe Gezin? Stiefplan, Tips en Tools voor het Samengestelde Gezin [How to make s­ uccess of your new family? Step-parent plan, tips and tools for the stepfamily] (2012) Huizen: Pica. 39

Dijkstra S & Van Dartel N Verborgen schatten. Wat goede professionals doen en cliënten ervaren bij de aanpak van huiselijk geweld [Hidden treasures. What good professionals do and clients experience dealing with domestic violence] (2011).

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Johnson M Intimate Terrorism, Violent Resistance, and Situational Couple Violence: A Typology of Domestic Violence (2008) Boston/Hannover/London: Northeastern University Press. Munro E Effective Child Protection (2002) London/California/New Delhi: SAGE. Pels T, Lunnemann K & Steketee M Opvoeden na Partnergeweld: Ondersteuning van ­Moeders en Jongeren van Diverse Afkomst [Parenting after interparental violence: Support of mothers and youth with diverse backgrounds] (2010) Assen: Van Gorcum. Pinedo M & Vollinga P Aan Alle Gescheiden Ouders: Leer Kijken Door de Ogen van je Kind [To all divorced parents: Learning to look through the eyes of children] (2013) Utrecht: Bruna. Radford L & Hester M Mothering through Domestic Violence (2006) London/Philadelphia: Jessica Kingsley Publishers. Spruijt E & Kormos H Handboek Scheiden en de Kinderen: Voor de Beroepskracht die met Scheidingskinderen te Maken Heeft [Handbook of divorce and children: For the professional who has to deal with children in divorce] (2014) Houten: Bohn, Stafleu en van Loghum. Van Der Pas A Handboek Methodische Ouderbegeleiding: Eert uw Vaders en uw M ­ oeders [Handbook of methods for guiding parents: Honour your fathers and mothers] (2005) Amsterdam: SWP. Van Lawick J & Visser M Kinderen uit de Knel: Een Interventie voor Gezinnen Verwikkeld in een Vechtscheiding [Children in a fix: Intervention for families embroiled in a fighting divorce] (2014) Amsterdam: SWP.

Chapters in Books

Dijkstra S ‘Knellende maatschappelijke normen over ouderschap: Escalatie bij vecht­ scheiding nader beschouwd’ [Strict societal norms for parenting: A closer look at escalation in high-conflict divorce] in Van der Pas (ed) Hoezo Probleemouders? Tien Opstellen Over de Ongemakkelijke Relatie Ouders-Maatschappij [Why problem parents? The uneasy relationship between parents and society] (2014) 45–53 Amsterdam: SWP. Groen M & Van Lawick J ‘Vechtscheidingen’ [High-conflict divorce] in Intieme Oorlog: Over de Kwetsbaarheid van Familierelaties (2013) 114–58 Amsterdam: Van Gennep.

Journal Articles

Dijkstra S ‘Slaan uit macht en onmacht: Mannen leren in groepswerk praten over het geweld en hun relaties met vrouwen en kinderen’ [Battering from power and powerlessness: Men learn in group work to talk about violence and their relationships with women and children] (2011) 20(3) Journal of Social Intervention: Theory and Practice 59–76.

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Dijkstra S & Verhoeven W ‘Gescheiden werelden en gespannen verhoudingen: Ou­ derschap na scheiding en geweld met dodelijke afloop’ [Separate worlds and tense relationships: Parenting after divorce and fatal violence] (2014) 1 Maatwerk 2–6. Hester M ‘The three-planet model: Towards an understanding of contradictions in approaches to women’s and children’s safety in contexts of domestic violence’ (2011) 41 British Journal of Social Work 837–53. Hester M ‘Who does what to whom? Gender and domestic violence perpetrators in English police records’ (2013) 10 European Journal of Criminology 623–37. Merkelbach H ‘Een valse aangifte: Waarom recherchepsychologen belangrijk zijn’ [A false allegation: Why police psychologists are important] (2015) De Psycholoog January, 40–8. Shepard MF & Hagemeister AK ‘Perspectives of rural women: Custody and visitation with abusive ex-partners’ (2013) 28 Affilia: Journal of Women and Social Work 165–76. Thiara RT & Humphreys C ‘Absent presence: The ongoing impact of men’s violence on the mother-child relationship’ (2015) Child and Family Social Work 1–9.

Miscellaneous

Dijkstra S Vechtscheiding als complex vraagstuk van de-escalatie. Verkenning van zeven dimensies van het probleem [High-conflict divorce as a complex problem of deescalation], centrale lezing, werkconferentie Uit de houdgreep, Taskforce, 27 May 2014, Utrecht. http://www.taskforcekinderenveilig.nl/documenten/379/programma -vechtscheidingen.pdf. Dijkstra S ‘Kinderen uit de knel: Boekbespreking’ [Children in the fix: Book review] (2015) 5 Maatwerk 25–6. Dullaert M Is de zorg gegrond? Analyse van het feitenonderzoek aan de basis van ingrijpende jeugdzorgbeslissingen [Is the care grounded? Analysis of research effects based on difficult decisions of youth care] (2013) Die Kinderombudsman, available at http://www.dekinderombudsman.nl/ul/cms/fck-uploaded/2013.KOM008Is dezorggegrond.pdf (accessed 13 January 2016). Expertmeeting Vechtscheiding (2013) Den Haag (verslag), available at www.sietske -dijkstra.nl/wordpress/wp-content/uploads/Verslag-Expertmeeting-vechtscheidingen-2013-11-20-d (accessed 10 November 2014). Groen M Botsende systemen: reflectie expertmeeting vechtscheiding [Clashing systems: Reflections from a meeting of experts in high-conflict divorce] 20 November 2013, Den Haag. Lenssinck A ‘Afscheid nemen van dat intense gevoel is moeilijk: Interview met Mark Tuitert’ [Saying goodbye to that intense feeling is difficult: Interview with Mark Tuitert] de Tijd, Trouw 6 September (2014) 32–35.

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Lünnemann K, Hermens N & Roeleveld W Mannen over partnergeweld en vader­ schap: Een exploratief onderzoek. [Men talk about partner violence and fatherhood: Explorative research] (2012) Utrecht: Verwey-Jonker Instituut. OM, available at http://www.om.nl/onderwerpen/huiselijk-geweld/@155243/aanwij­ zing-opsporing, http://media.leidenuniv.nl/legacy/dijkstra-leidencongres.pdf. Voert MJ & Geurt T Evaluatie ouderschapsplan: een eerste verkenning [Evaluation of the parenting plan: A first exploration] (2013) Den Haag: WODC. Wikipedia ‘escalatieladder’, available at http://www.nl.wikipedia.org/wiki/Escalatieladder (accessed 13 January 2016).

chapter 43

Amendment of the Dutch Child Protection System: An Improvement for Children? Goos Cardol Abstract The main question to be answered in this chapter is if the recent amendment to the Dutch child protection system provides sufficient conditions, guarantees and tools for practitioners in the field, especially since the system aims to bring about an attitudinal change in parents, children, professionals and their organisations. This chapter’s main focus is on the connection between the law in theory and the law in practice. It will be argued that a change in law alone is not enough to achieve the goals of the law. Although in theory the new child protection law meets the conditions laid down in the crc, implementation can only be successful if there is a multi-layered approach, if a process of change is centred both on the organisation and on policy development as well as a shift in attitude among professionals and citizens. Since the professional is crucial in this process, far greater attention to his or her role is needed. Only then will the requirements of the crc be met in theory and in practice.

1 Introduction As of 1 January 2015, the Dutch child protection system has been radically amended. The grounds upon which intervention into family situations can take place have been simplified. A noticeable characteristic of the new system is that the best interests of the child have become more prominent, with concepts such as ‘timely signalling’ and ‘preventive intervention’ becoming central. In this sense, the Netherlands is following numerous other western ­European countries that have amended their child protection systems. In these countries, the system is focused on the broader promotion of the interests of the child, which are considered a social responsibility and thus create rights and obligations for the parents and the state.1 In the Dutch system, ­raising 1 Veldkamp AWM Over grenzen! Internationaal vergelijkende verkenning van de rol van de overheid bij de opvoeding en bescherming van kinderen (2001); Berg-le Clercq T, Bosscher N & Vink C Jeugdzorg in Europa 2.0. Een update en uitbreiding van het rapport uit 2009 over

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_044

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c­ hildren was historically regarded as the domain of the parents; the state had to restrain from intervening, unless the development of the child was seriously threatened. The prioritisation and promotion of the best interests of the child in the broader sense is noticeable in the concept of continuity. This principle, which can be found in article 20 of the un Convention on the Rights of the Child (crc) and is incorporated in the current system of child protection measures, is an essential component of the current legislation. It is no longer the best interests of the parents that are the primary consideration when dealing with decisions with respect to emergency protection orders, which result in the removal of the child from the home, the non-consensual discharge of parental authority, or a return order to the parents. Instead, the best interests of the child prevail, with the focus on timely signalling and prevention. This is noticeable in the system of laws and regulations in the field of youth law, of which the Youth Act, which also entered into force on 1 January 2015, is the most noticeable. At first sight, it would appear that the best interests of the child have won ground and the requirements of article 3 of the crc are now satisfied. A system in which intervention can take place only if there are reasons to doubt parental authority has been replaced with one in which the development and the needs of the child are the primary considerations. In other words, the system seems to be in line with one of the key articles of the crc. But has the amendment to the child protection system done enough to address developmental problems and contribute to better parent–child relationships, especially since it is open to question if the Act provides sufficient conditions, guarantees and tools for practitioners in the field? That is the main question of this chapter. Thus, the focus is on the connection between the law in theory and the law in practice. Is an amendment sufficient in itself to achieve the goals set out in this Act, or is more needed? To answer these questions, several sub-questions need to be addressed. First, reference needs to be made to the crc to determine which requirements and obligations it creates with respect to child protection measures. Does the crc set standards concerning state intervention in parent–child relationships and, if so, are these standards sufficiently embedded in the Dutch system of laws and rules applicable for children? Did the old child protection system already meet the requirements of the crc, and what has to be developed in the new system? These are questions addressed in Section 2 of this chapter. Section 3 j­eugdzorgstelsels in een aantal West-Europese landen (2012) (abstract in English available at http://www.youthpolicy.nl); Berg-le Clercq T, Hilverdink P & Vink C Preventie ingebed en verbonden. Lessen uit Scandinavie en Engeland (2015).

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describes the characteristics of the old system, after which Section 4 discusses the amendments introduced by the new legislation. Both sections primarily consider the characteristics of the Dutch system in general rather than provide a detailed description of the measures themselves: the focus is on the underlying presumptions and points of reference. Section 5 examines whether the Act provides sufficient conditions, guarantees and tools for the practitioners in the field, and Section 6 concludes the chapter. 2 The crc The crc is a holistic convention, and from that perspective every article can be relevant for a child protection system. However, in this chapter the focus is on those aspects of the crc which, it is submitted, are paramount for a child protection system. One can identify three main conceptual strands in the crc which are important for child assistance, child care and child protection; together, these strands form the golden thread of the Convention.2 The first principle of the crc in this regard is that the parents are the primary carers of the child. Article 5 and article 18 both indicate that the parent has the right to care for and raise his or her own child. Article 1:247 of the Dutch Civil Code creates a similar obligation by stating that the parents have the right and duty to care for their child. This point of view is generally accepted in Dutch society. The manner in which the child should be raised is left to the parents. According to this principle, a parent can provide such care according to his or her own wishes, albeit within the framework of the law. The second, and interrelated, principle, which is very clear in the text of article 7 of the crc, is that the child has the right to know his or her parents and be raised by them. Furthermore, the opening sentence of the Convention states that the family should be regarded as the core of society and the natural environment in which a child should be raised. These points of departure are open doors and do not encounter much resistance. It is, however, interesting when the third line of thought is brought into the picture. This concerns the relationship between the child, the parent and the state, and can be found in article 5 of the Convention. The parens patriae concept is laid down in this provision, which embodies the protective function of the state. 2 Cardol G ‘De betekenis van het kinderrechtenverdrag voor het versterken van de eigen kracht van gezinnen’ in Jumelet H & Wenink J (eds) Zorg voor onszelf? Eigen kracht van jeugdigen, opvoeders en omgeving, grenzen en mogelijkheden voor beleid en praktijk (2012).

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With these three strands forming the golden thread of the crc, there is tiered responsibility for the upbringing and care of the child; that is to say, the parents are given the primary responsibility, but if they do not succeed, the state is then responsible for intervening. The first two strands create a strong obligation for those who work with the parents and the children, develop policy and draft legislation; in relation to intervention, it should be clear that the state should show restraint in individual cases, policy and legislation.3 The consequence of this golden thread is that if a child is threatened in his or her development, the primary focus should be on the removal of the threat within the familial situation and, if this is not possible, investigation should take place to assess the extent to which the familial network can provide a supportive role for the family. This is the fundamental rationale of the new youth care system and is in keeping with the principles of the crc: assistance is as close to home as possible and makes use of ordinarily available sources. An emergency protection order whereby the child is removed from the home can be a real option only if no possibilities are available within the family or immediate environment to deal with the threatening situation. From this perspective, the emergency protection order has to be a last resort or ultimum remedium.4 The same approach should also be taken with each and every infringement of the abovementioned rights of parents and children. Last but not least, societal developments should also be taken into account in the explanation and application of the Convention; it is the aim of the drafters of the Convention that it should be regarded as a living instrument.5 Alongside these three lines of thought, article 20 of the crc is – as stated in the Youth Act, as entered into force on 1 January 2015 – also relevant for the system and practice of youth care and child protection. Article 20 introduces the principle of continuity. It emphasises that continuity in the lives of children is important not only with respect to home life, but to the supervision of youth care dossiers with regard to whether siblings can be placed together and many other decisions affecting children. The principle of continuity is a further consideration that should be applied in realising the right to protection if children are unable to continue to live at home.6 3 Weijers I Parens Patriae en prudentie. Grondslagen van jeugdbescherming (2012). 4 Bruning MR & Van der Zon KAM ‘Out of home, out of right? Rechten van minderjarigen bij uithuisplaatsing’ (2013) 4 njcm Bulletin 500–14; un Guidelines for the Alternative Care of Children, un Document A/RES/64/142. 5 Hodgkin R & Newell P Implementation Handbook for the Convention on the Rights of the Child (2002). 6 Parliamentary Proceedings, Second Chamber, 2008/09, 32 015, No. 3.

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In this context it is worth mentioning the core provisions of article 3 (best interests of the child as primary consideration) and article 12 (the child’s right to make his or her opinion known). The ‘best interests of the child’, often referred to as a magic formula, is an umbrella term which has efficacy only when provided with concrete content: it is made-to-measure, taking into account the evolving capacities of the child, as well as the decision’s context, nature and implications for the present and future. Kalverboer and Zijlstra have developed a matrix for professionals, organisations, policy-makers and legislators that provides concrete content to this concept.7 They use 14 developmental conditions that are important for the child. On the basis of the facts and actual circumstances, the best interests of the child becomes a concept that can be used to determine whether support is necessary and what the possible risks are for the child’s development. According to Kalverboer and Zijlstra, the conditions can be divided into familial and societal factors. Familial factors include physical well-being (adequate care and a safe immediate physical environment) and upbringing (affectionate climate, supportive flexible upbringing structure, adequate parental role model behaviour, interest, continuity in the upbringing, care and future perspectives). With respect to societal conditions, the following are salient factors: a safe broader physical environment; respect; a social network; education; and contact with peers and adequate role models. Continuity in life circumstances and clarity about future prospects are also mentioned as important for the development of the child. The child’s right to make his or her opinion known (art. 12 crc) is one of the few participation provisions in the Convention. The Convention thus emphasises that children are not only objects of protection but subjects possessing rights and obligations. The right to voice one’s opinion would appear to be self-evident, but this is often not the case in youth care and child protection. Adults often tend to determine what is good for the child, and if one talks to children it is questionable whether (a) they have been satisfactorily informed on the matter for which their opinion is being requested, (b) their opinion has been taken into account in a satisfactory manner, and (c) the child has been informed about what has actually been done with his or her opinion. With this framework in mind, it is interesting to analyse whether and how these provisions were given form in the old child protection system and how they form part of the new system.

7 Kalverboer M & Zijlstra E Het belang van het kind in het Nederlandse recht. Voorwaarden voor ontwikkeling vanuit een pedagogisch perspectief (2010).

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Characteristics of the Old Child Protection System

The system of child protection measures that functioned until 1 January 2015 dated from 1905 and 1921, respectively. Thereafter, no fundamental changes took place. Since its creation, the Dutch system has consisted of three measures, one of which can cause parental authority to be limited (supervision order) and two of which discharge the parents of their parental authority (discharge and divestment). In 1948, a measure was added whereby it was possible to discharge parents of their parental authority against their will; non-consensual discharge with the permission of the parents already existed prior to 1905.8 In 1995, the grounds for the supervision order – the lightest form of child protection measure whereby the parent could be forced to receive assistance – were amended.9 This non-severe measure was only possible when voluntary assistance had not, or was not expected to, produce sufficient results. In the same amendment, the role of the specialised children’s judge was limited: from that moment on, decisions on child protection orders were still taken by the children’s judge, but he or she was no longer responsible for the execution of the measures. In other words, specialised judges lost their double role of decision-making and execution, which, according the legislator, is more in line with article 6 of the European Convention on Human Rights. In 2005 the Youth Care Act entered into force. In this Act rules were laid down for youth care organisations and the execution of child protection measures.10 The system, which was valid until 1 January 2015, was characterised by six elements: • An investigatory institution (the Child Protection Board) examined the need for a child protection measure and acted as the petitioner if it were decided to petition the judge for the measure. This was a governmental organisation and had no interests in the ultimate issuance of the measure. Only if the organisation could justify on statutory grounds why a measure was deemed necessary, could the petition for the measure be awarded. • A petition filed with the district court could be dealt with in single chambers (a specialised judge) or in full chambers (that is, three judges). The tests consisted of determining whether the statutory grounds were fulfilled. 8 9 10

De Vries ADW & Van Tricht FJG Geschiedenis der wet op de Ouderlijke Macht en de Voogdij (1903) Groningen: JB Wolters, Section i, 36 et seq. Parliamentary Proceedings, Second Chamber, 1992/93, 23 003, No. 3. Youth Care Act (Wet op de jeugdzorg), 22 April 2004, Stb. 2004, 306.

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• Generally, the measure should have been in the best interests of the child. While this was not included in the text of the legislation regarding supervision orders, in the case of discharge orders it was. • The state could protect the interests of children against the will of the parents only if reasons were given to restrict or divest parents of their parental authority. In other words, the supporting evidence must have been sufficient to prove that the parents could not, or did not want to, cooperate and that the development of the child was thus threatened. • If the judge issued a child protection measure, the enforcement of that measure was delegated to a specialised provincial institution, which acted according to the Youth Care Act. • Legal assistance for the youngster was guaranteed only when placement in a closed setting was requested. In other cases it was up to parents to decide if legal assistance was needed. In the second half of the twentieth century, child protection measures – ­especially the supervision order, the issue of enforcement, and the system’s lack of transparency – were a frequent subject of discussion. The Wiarda Commission, which finalised its report in 1971 for the then Minister of Justice in response to the question of which legislative amendments were needed in the field of youth care protection, argued for increased emphasis on child protection.11 Furthermore, the Commission argued that the package of measures (which contained the best interests of the child) should prevail over the right and duty of the parents to raise their child.12 The Commission was a proponent of simplifying the system of measures and placing more emphasis on continuity in the raising of minors. Both of these aspects were achieved in 2015 in the current system of child protection measures. In 1972, shortly after the publication of the Wiarda Commission report, Jaap Doek (later president of the un Children’s Rights Committee, 2001–2007) defended his PhD on 50years of supervision orders. He stated that ‘we seriously needed to consider a child protection measure without a supervision order’, and concluded that the legal jacket no longer fitted.13 In the 1980s, the number of child protection measures increased simultaneously with an increase in criticism of the manner in which the youth p ­ rotection 11 12 13

Commissie voor de herziening van het Kinderbeschermingsrecht (Cie. Wiarda), Jeugdbeschermingsrecht (1971). Wiarda Commission (1971). Doek JE Vijftig jaar ondertoezichtstelling. Academisch proefschrift (1972) Zwolle: Uitgeversmaatschappij W.E.J. Tjeenk Willlink 278.

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services operated, especially with respect to the transparency of the system.14 At the initiative of the state, two research reports were published in which proposals were made for improving the existing system.15 In the context particularly of a closed system of child protection, there were concerns about, inter alia, the absence of a country-wide complaints procedure; the provision of information and discussion concerning the expertise of employees (lack of behavioural experts); the length of the measures; the absence of the possibility of providing a statement of defence; the mono-disciplinary working methods of the Child Protection Board; and the lack of possibilities to review the latter’s research. Both reports led to amendments in the organisation of the investigatory institution (Child Protection Board) and to improvements in procedures. The government more or less uniformly adopted the recommendations of these reports.16 A call for a more fundamental review of the system of child protection measures was refused because it was felt that the existing system functioned properly. The research of Slot et al., which investigates the aims of the supervision order, indicates that this opinion was subject to debate.17 Of the 103 cases researched, the authors identified 909 issues with respect to the child, his or her family and the surroundings. The researchers showed that only the group of children with serious problems (28 per cent) were assisted and their situations improved by the child protection measure. For the other children, the situation remained the same (28 per cent) or became worse (33 per cent). The researchers showed that the supervision order did provide a useful framework. Despite this criticism, however, it would take many decades before a fundamental amendment to the system of child protection measures was effected. 4

The Current Child Protection System

The impetus to amend the system was provided by the Evaluation of the Youth Care Act, which indicated that the youth protection system had shortcomings.18 Other research showed that the number of clients in the youth care 14 15 16 17 18

Dane J (ed) Honderd jaar kinderbescherming (2006). Subcommissie Kinderbescherming (Commission Vliegenhart), Rechtzetten (1990); Commissie Taak en Functie Raden voor de Kinderbescherming (Cie. Gijsbers) (1990). Rapport Kosto, Justitiele jeugdbescherming: met recht in beweging. Een herorientatie (1990). Slot, Theunissen, Esmeijer & Duivenvoorden 909 Zorgen: een onderzoek naar de doelmatigheid van de ondertoezichtstelling (2002). Baecke J (ed) Evaluatieonderzoek Wet op de Jeugdzorg (2009).

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s­ ystem increased annually, without there being a corresponding change in the underlying youth problem in the Netherlands.19 An analysis conducted by the commission created by the Second Chamber revealed discomfitingly that on occasion serious measures were adopted for relatively minor problems to do with children’s upbringing.20 All told, the increased political and social attention given to issues in the youth protection system served to create the space for a rigorous amendment of that system. The review of child protection measures was initially planned to enter into force in 2012, but given that the review process raised questions about the creation of a new system in which municipalities would play a greater role, the date of entry into force was delayed until 1 January 2015, which was also the date on which the new youth care system entered into force. At first, these two paths were separate but fortunately the gap between them narrowed, ensuring that cross-fertilisation could take place. Only three of the points of attention from the old system (mentioned above in Section 3) remained: the role of the Child Protection Board; the specialised judge; and legal assistance when placement in a closed institution was requested. The others were amended or fundamentally changed, as summarised below. • In the current child protection system, the best interests of the child have become a far more significant consideration. This is most noticeable in the child protection measures, where the question of whether parental assistance for the child can be provided within a reasonable period of time is crucial for the determination of the measure to be applied. If assistance can be provided, then a lighter measure through which the parent–child relationship can be restored is appropriate. If such assistance cannot be provided, then the more serious measure of divesting the parents of their parental authority and raising the child elsewhere would be suitable. As already noted, the best interests of the child are the determining factor for this decision. In practice, then, the length of the required assistance is balanced against what would be regarded as acceptable for the child. Accordingly, the previously discussed principle of continuity is now part of the new system of child protection measures. • It is even clearer than before that primary responsibility for the child’s upbringing lies with the parents. The explanatory notes to the legislation state: ‘Children have the right to a healthy and balanced upbringing, as well as growth towards independence. The parents are primarily responsible […] 19 20

Hermanns J Het opvoeden verleerd (2009). Werkgroep Toekomstverkenning jeugdzorg Jeugdzorg dichterbij 18 May 2010.

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When problems arise in the care and upbringing of their children, parents request assistance from the State […]. In those cases that the parents are not successful in the performance of this responsibility […], the State is charged with taking measures to ensure that the children are protected.’21 This text emphasises that while promoting the balanced development of children is the joint responsibility of parents and the state, this lies primarily with the parents. First, it will need to be investigated whether parents and children can be provided support in order to remove the threat to their development. Only where this is not possible – either because the parents or children do not cooperate or because the assistance does not produce the desired results – is the state tasked with intervening. Articles 3 and 18 of the crc, read together, are key to fulfilling these responsibilities. • From 1 January 2015, the municipality became responsible for the enforcement of the measure. Because this level of government is so close to the citizenry, it is envisaged that prevention and early intervention will improve, in the process avoiding serious developmental problems that could affect children at a later stage. Municipalities have introduced district and neighbourhood teams to fulfil their assigned tasks properly. • Last but not least, the choice has been for a system in which the focus is on the integral approach towards provision of assistance. Children’s problems are seldom just children’s problems.22 In the Dutch context, the municipality is in the best position by far to make the connection between different living situations and assess the strengths and weaknesses of the familial situation. Furthermore, a more comprehensive review can take place as to whether possibilities are available to effect change. For example, in a family where the parent–child relationship has been disturbed and there are issues with debt, it may be better to work first on a solution to the debt problem – and in the process improve the parent–child relationship by reducing the parent’s stress – rather than focus assistance on the relationship alone. • In the current system, a great deal of attention has been paid to the prevention of severe (that is, expensive) youth care. This entails, inter alia, working intensively with the parents and children to avoid having to use a forcible measure, and has been termed the ‘pressure’ approach. Only time will tell whether and in what way the statutory requirement can be realised in practice and if, with this amendment, the Dutch child protection 21 22

Parliamentary Proceedings, Second Chamber, 2008/09, 32 015, No. 3. Cardol G ‘Eerst denken en dan doen. Over het versterken van de eigen kracht van gezinnen en het beter benutten van het sociale netwerk’ (2012).

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system will become more effective. The next section addresses the question of whether the Act provides sufficient conditions, guarantees and tools for practitioners in the field. Whereas the previous sections focused on the law as such, in Section 5 the focus is on the law in practice. 5

Law in Practice

A first observation is that the principle that parents have a primary responsibility, and that the focus therefore has to be more on the family itself and its social network, is in line with the crc. The same is true for emphasising the importance of the principle of continuity. This principle has found its way into Dutch case law, as is evident from published cases.23 However, a number of concerns can be raised when it comes to the law in practice. The first concern is that the concepts used in the Act are not sufficiently defined and this leaves a large margin for interpretation. One should understand the precise meaning of the concepts that form the basis of the youth assistance system. In the process of enforcing the system, it is sometimes too easily assumed that terms – such as ‘participation’, ‘strengthening parents and children’, ‘best interests of the child’, ‘input of social network and security’ – are understood in the same way. However, each term needs to be carefully defined and attention paid to the facts and circumstances of particular cases, including the evolving capacities of the child. The concepts mentioned above are too often interpreted in a ­one-dimensional way.24 After all, not every child’s social network is accessible for assistance and some children do not possess a useful network. In such a network analysis, digital networks should also be included and attention given to the fact that multiple networks can operate alongside one another in any given family. With regard to the strength of parents and children, some families will require longterm support from a professional network. However, every parent and child has their own strengths, though possibly not in the field of experience where the problems or questions have arisen. There is a great deal of focus on the deficits of parents and children, but if more attention and recognition were given to their strengths as well, it could help collaborative efforts to find solutions.

23 24

See inter alia ECLI:NL:RBGRO:2010:BL0217, ECLI:NL:GHARL:2014:4495, ECLI:NL:GHARL: 2013:7634. Cardol G ‘Eerst denken en dan doen. Over het versterken van de eigen kracht van gezinnen en het beter benutten van het sociale netwerk’ (2012).

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The second concern is that in the legislation the suggestion is raised that one’s own strength and the input of one’s social network are two concepts that operate alongside one another at the same level. In well-documented ­American research, one’s own strength is regarded as the overarching term and five terms are used to further define it, of which the input of a social network is one (fivefactors model).25 The resilience of the parent, and the available knowledge regarding upbringing at the correct moment, are, alongside child-related factors and the ability to deal with crisis situations, factors that can contribute to the improvement of the personal strength of the parents and children. This model, for which there is a great deal of supporting research, regards the strength of families in a broader context and would appear to be useful in the Dutch context, not least because the Dutch model seems based mainly on assumptions. There is hardly any research on the effectiveness of the principles of the present system and no evidence that these principles will work. The American model also regards the role of the parent in a broader context, where attention is given to the role of a partner, an employer or employee, a girlfriend or boyfriend, and the role of hobbies. As far as possible, all of these roles should be combined with the parental task of raising the child. If one focuses only on the role of being a parent, insufficient account will be taken of the parent’s context. Stress forms part of this model insofar as a child needs to experience stress in order to learn how best to deal with it. If this does not happen, the child will not grow up properly. Finally, this model also takes into account the role of the professional, which research shows is a crucial factor.26 The third and possibly the most important concern relates to the implementation of a new child protection system. The Dutch system aims to bring about an attitudinal change in parents, children, professionals and their organisations. As a result, it focuses on reinforcing the individual strengths of parents and children, where necessary with input and support from their broader social network. These concepts have not been defined further, and this remains to be done by frontline practitioners in accordance with what the professional field requires. English research indicates that the likelihood of failed implementation is greater if the definition of legislation is broad and vague.27 Creating behavioural change, then, depends on the clear delineation of terms 25 26

27

Center for Study of Social Policy, http://www.cssp.org. Van Luitgaarden G Knowledge and knowing in child protection practice: an empirical exploration of the role of knowledge in constructing service user identities at the point of first referral (2011); Baartman H ‘Werken met angst’ (2010) 13 Ouderschapskennis 125–41. Henricson C A Revolution in Family Policy (2012).

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and concepts. Furthermore, behavioural change with respect to care for each other cannot be achieved by legislation alone. Change is also required at the level of enforcement organisations, policy development, professionals and the citizenry themselves.28 After all, the amendments are not just technical changes to the grounds or conditions for the issuance of a child protection measure, or a change in the child protection organisation. Instead they are focused on a shift in attitude amongst professionals, organisations, parents and children. The change in attitude should be focused on timely signalling, the improvement of one’s own strengths and the use of social networks. It should entail good interpersonal communication, taking responsibility for others, and an ability and willingness to share questions and problems concerning the raising of children in a particular context. The change requires space for professionals and should devote less attention to issues of self-management and control. This is a largescale operation which requires a great deal of attention to be paid to the desired change in attitude of citizens and professionals. At the moment, only limited attention has been paid to this issue, as the focus hitherto was primarily on changes to the system. Connolly and Ward maintain that although a great deal of attention has been paid to changes in attitude, the political and social environment will affect this attitude change, because ‘a dominant aversion to risk can shift the pendulum from familycentred work towards professionally dominated practice and more adversarial approaches’.29 Hetherington also points to the dominant culture and existing structures in society as important factors in shaping the way in the process of change is implemented.30 She also mentions professional opinions as a determining factor, which in previous years received insufficient attention.31 28 29 30

31

Connolly M & Ward T Morals, Rights and Practice in the Human Services. Effective and Fair Decision-Making in Health, Social Care and Criminal Justice (2008). Connolly M & Ward T Morals, Rights and Practice in the Human Services. Effective and Fair Decision-Making in Health, Social Care and Criminal Justice (2008). Hetherington R ‘Learning from difference: Comparing child welfare systems’ Partnerships for Children and Families Project June 2002; Clarijs R Tirannie in de Jeugdzorg. Een onderzoek naar de mogelijkheden van beleidsveranderingen (2013). See further, inter alia, Sennett R De Ambachtsman. De mens als maker (2012); Ineke Huibregtsen, ‘Ouderschaptheorie in de praktijk’ in Berk M, Hoogenboom A, De Kleermaeker M & Verhaar K (eds), De Jeugdprofessional in ontwikkeling (2012) 111–19; Van Ewijk H ‘De zoektocht naar een nabije professionele vriend als kern van een functionerende jeugdzorg’ in Berk M, Hoogenboom A, De Kleermaeker M & Verhaar K (eds) De Jeugdprofessional in ontwikkeling (2012) 99–110.

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6 Conclusion The introduction to this chapter posed the question of whether the ­amendments to the child protection system have done enough to address developmental problems and contribute to a better parent–child relationship, especially since it can be questioned whether the Act provides sufficient conditions, guarantees and tools for practitioners in the field. The first conclusion is that the new child protection law is sufficient to meet the conditions laid down in the crc and does mark an improvement for children. However, proper implementation of this law, entered into force in the Netherlands on 1 January 2015, can be successful only if the process of change is centred both on the organisation and policy development as well as a shift in attitude amongst professionals and citizens. Until now, little attention has been paid to these issues. While municipalities are not the ones that should lead this process, they have considerable interest in its outcomes, including savings in costs. Implementation of the present child protection system requires a multi-layered approach and far greater attention to the role of professionals. Only then will the system properly realise the rights of children and their parents, as laid down in the crc. Bibliography Books

Baecke J (ed) Evaluatieonderzoek Wet op de Jeugdzorg (2009) Amersfoort: BMC Advies Management. Berg-le Clercq T, Hilverdink P & Vink C Preventie ingebed en verbonden. Lessen uit Scandinavie en Engeland (2015) Utrecht: Nederlands Jeugdinstituut. Clarijs R Tirannie in de Jeugdzorg. Een onderzoek naar de mogelijkheden van beleidsveranderingen (2013) Amsterdam: SWP Publishers. Connolly M & Ward T Morals, Rights and Practice in the Human Services. Effective and Fair Decision-Making in Health, Social Care and Criminal Justice (2008) London: Jessica Kingsley Publishers. Dane J (ed) Honderd jaar kinderbescherming (2006) Amsterdam: SWP Publishers. De Vries ADW & Van Tricht FJG Geschiedenis der wet op de Ouderlijke Macht en de Voogdij (1903) Groningen: JB Wolters. Doek JE Vijftig jaar ondertoezichtstelling. Academisch proefschrift (1972) Zwolle: Uitgeversmaatschappij WEJ Tjeenk Willlink. Henricson C A Revolution in Family Policy (2012) Bristol: Policy Press. Hermanns J Het opvoeden verleerd (2009) Amsterdam: Amsterdam University Press.

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Hodgkin R & Newell P Implementation Handbook for the Convention on the Rights of the Child (2002) New York: United Nations Children’s Fund. Kalverboer M & Zijlstra E Het belang van het kind in het Nederlandse recht. Voorwaarden voor ontwikkeling vanuit een pedagogisch perspectief (2010) Amsterdam: SWP Publishers. Sennett R De Ambachtsman. De mens als maker (2012) Amsterdam: JM Meulenhoff. Van Luitgaarden G Knowledge and Knowing in Child Protection Practice: An Empirical Exploration of the Role of Knowledge in Constructing Service User Identities at the Point of First Referral (2011) Salford (UK): School of Social Work, University of Salford. Weijers I Parens Patriae en prudentie. Grondslagen van jeugdbescherming (2012) ­Amsterdam: SWP Publishers.

Chapters in Books

Cardol G ‘De betekenis van het kinderrechtenverdrag voor het versterken van de eigen kracht van gezinnen’ in Jumelet H & Wenink J (eds) Zorg voor onszelf? Eigen kracht van jeugdigen, opvoeders en omgeving, grenzen en mogelijkheden voor beleid en praktijk (2012) Amsterdam: SWP Publishers. Huibregtsen I ‘Ouderschaptheorie in de praktijk’ in Berk M, Hoogenboom A, De Kleermaeker M & Verhaar K (eds) De Jeugdprofessional in ontwikkeling (2012) Alphen aan de Rijn: Kluwer. Van Ewijk H ‘De zoektocht naar een nabije professionele vriend als kern van een functionerende jeugdzorg’ in Berk M, Hoogenboom A, De Kleermaeker M & Verhaar K (eds) De Jeugdprofessional in ontwikkeling (2012) Alphen aan de Rijn: Kluwer. Veldkamp AWM Over grenzen! Internationaal vergelijkende verkenning van de rol van de overheid bij de opvoeding en bescherming van kinderen (2001) The Hague: Ministry of Justice.

Journal Articles

Baartman H ‘Werken met angst’ (2010) 13 Ouderschapskennis 125–41. Bruning MR & Van der Zon KAM ‘Out of home, out of right? Rechten van minderjarigen bij uithuisplaatsing’ (2013) 4 NJCM Bulletin 500–14. Hetherington R ‘Learning from difference: Comparing child welfare systems’ Partnerships for Children and Families Project June 2002, available at http://www.wlu.ca/ docsnpubs_detail.php?grp_id=1288&doc_id=7203 (accessed 17 December 2015).

Guidelines

UN Guidelines for the Alternative Care of Children, UN Document A/RES/64/142.

Legislation

Youth Care Act (Wet op de jeugdzorg), 22 April 2004, Stb. 2004, 306.

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Miscellaneous

Berg-le Clercq T, Bosscher N & Vink C Jeugdzorg in Europa 2.0. Een update en uitbreiding van het rapport uit 2009 over jeugdzorgstelsels in een aantal West-Europese landen (2012) Utrecht: Nederlands Jeugdinstituut (abstract in English available at http://www.youthpolicy.nl) Cardol G ‘Eerst denken en dan doen. Over het versterken van de eigen kracht van gezinnen en het beter benutten van het sociale netwerk’ (2012) Heerlen: Zuyd Hogeschool, Faculteit Sociale Studies & Educatie, lectorale rede. Center for Study of Social Policy, Washington, D.C., http://www.cssp.org. Commissie Taak en Functie Raden voor de Kinderbescherming (Cie. Gijsbers) (1990) The Hague: Ministry of Justice. Commissie voor de herziening van het Kinderbeschermingsrecht (Cie. Wiarda), Jeugdbeschermingsrecht (1971) Den Haag: State Publisher. Parliamentary Proceedings, Second Chamber, 1992/93, 23 003, No. 3. Parliamentary Proceedings, Second Chamber, 2008/09, 32 015, No. 3. Rapport Kosto, Justitiele jeugdbescherming: met recht in beweging. Een herorientatie (1990) The Hague: Ministry of Justice. Slot, Theunissen, Esmeijer Duivenvoorden, 909 Zorgen: een onderzoek naar de doelmatigheid van de ondertoezichtstelling (2002) Amsterdam: Vrije Universiteit. Subcommissie Kinderbescherming (Commission Vliegenhart) Rechtzetten (1990) Den Haag: SDU Publishers. Werkgroep Toekomstverkenning jeugdzorg Jeugdzorg dichterbij 18 May 2010, The Hague: Dutch Government, available at http://www.rijksoverheid.nl.

chapter 44

Child Participation in Post-divorce or -separation Dispute Resolution Astrid Martalas Abstract Both article 12 of the crc and Sections 10 and 31(1) of South Africa’s Children’s Act 38 of 2005 require that children are given the opportunity to make their views known in matters that affect them. This chapter explores obtaining children’s views in post-divorce or -separation disputes via a dispute resolution mechanism known as facilitation in South Africa. Three case studies have been selected to demonstrate the importance of taking children’s views into account when post-divorce or -separation disputes arise.

1 Introduction Articles 12(1) and (2) of the un Convention on the Rights of the Child (crc) support child participation by compelling States Parties1 to ensure that a child is given the right to freely express his or her views in any matter affecting that child and that a child is given the opportunity to be heard.2 Child participation is effected directly through consultation with the child, or indirectly by consulting with an adult or adults involved with the child, such as a parent, teacher or therapist, or by investigating the specific circumstances of a particular child. This chapter sets out to demonstrate the importance of child participation in post-divorce or -separation dispute resolution by referring to three case studies in which the author had been appointed as the facilitator. Furthermore, the chapter describes facilitation, a post-divorce or -separation­ dispute-resolution mechanism in the Western Cape province of South Africa, and compares it with mediation, another post-divorce dispute resolution mechanism available in South Africa. 1 South Africa ratified the crc on 16 June 1995. The sixteenth of June is a public holiday in South Africa known as National Youth Day; more information is available at http://www.sahistory .org.za (accessed on 27 January 2016). 2 Art. 12(1) and (2) crc.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_045

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The chapter outlines the obligation on the facilitator to hear the ‘voice of the child’, as required in the Children’s Act.3 The importance of hearing the ‘voice of the child’ in post-divorce or -separation disputes is demonstrated in the three case studies that follow. It is submitted that obtaining the voice of the child in these case studies assisted the facilitator to successfully mediate the disputes or, alternatively, issue a directive that was in the best interests of the child. It is further submitted that, without the involvement of the children, the resolution of the disputes might not have been in their best interests. 2

Post-divorce or -separation Dispute-resolution Mechanisms in South Africa

With the introduction of the Children’s Act, parents who are co-holders of parental responsibilities and rights post-divorce or -separation, are obliged to give ‘due consideration’4 to the views and wishes expressed not only by the child but also by the other co-holder of parental responsibilities and rights before decisions can be made which could have an adverse effect on, amongst other things, the child’s contact with the other co-holder of parental responsibilities and rights, the child’s education and the child’s well-being. The Children’s Act also makes provision for a parenting plan in which parents could agree that certain aspects of their child or children’s care would require a decision to be made jointly between the holders of parental responsibilities and rights.5 Parents postdivorce or -separation are not always able to come to agreement around issues that require joint decision-making and disputes frequently arise that require quick and relatively inexpensive dispute-resolution mechanisms. Other than continued litigation, two such mechanisms are currently available in South Africa. It is noted here that arbitration in family matters is not permitted in South Africa in terms of the Arbitration Act.6 2.1 Mediation Mediation as an alternative dispute-resolution mechanism has been formally introduced in the field of family law in South Africa since the 1980s.7 The 3 4 5 6 7

Children’s Act 38 of 2005 (hereinafter, the Children’s Act). S. 31(1)(a) and s. 31(2)(a) Children’s Act. S. 33 Children’s Act. S. 2 Arbitration Act 42 of 1965. Hoexter Commission Fifth and Final Report, Part B, Commission of Enquiry into the Structure and Functioning of the Courts RP78/1983.

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Children’s­Act supports mediation, stating that ‘[i]n any matter concerning a child, an approach which is conducive to conciliation and problem-solving should be followed and a confrontational approach should be avoided’.8 Mediation with regard to parenting plans and parental responsibilities and rights of unmarried fathers is required in terms of the Children’s Act.9 Several High Court judgments have ordered parents to mediate to resolve post-divorce or -separation disputes around contact.10 In the matter of mb v nb where the parties were involved in protracted litigation, Brassey AJ commented in his judgment that ‘mediation was the better alternative and it should have been tried’.11 This view was supported by the Supreme Court of Appeal when, in an unreported case, Lewis JA ordered that ‘[i]n the event that the parties experience difficulty in arranging contact they must first attempt to resolve this through a mediator rather than through court proceedings’.12 Despite judicial approval, mediation remains largely voluntary13 and typically occurs prior to divorce or separation as a means of working towards reaching a settlement. Parents may choose to enter into mediation to resolve disputes that arise post-divorce or -separation, but the mediator usually does not have decision-making powers. Should the mediation fail, the parties to the mediation are no closer to a decision. 2.2 Facilitation A mechanism for dispute resolution post-divorce or -separation, referred to as facilitation, was introduced into divorce orders in the Western Cape province of South Africa about eight years ago. De Jong describes facilitation as a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high-conflict parties in implementing parenting plans and resolving 8 9 10 11 12 13

S. 6(4) Children’s Act. S. 21(3)(a), s. 33(5)(b), s. 34(2)(b)(ii)(bb) Children’s Act. Van den Berg v le Roux (2003) All sa 599 (nc), Townsend-Turner and another v Morrow (2004)1 All sa 235 (C), S v J (sca)(unreported case no 695/2010). mb v nb 2010 (3) sa 220 (gsj). S v J (sca)(unreported case no. 695/2010). At the time of writing, other than where required by the Children’s Act, mediation in South Africa is voluntary. In March 2014, the Department of Justice gazetted Court Annexed Mediation Rules. Pilot projects have been rolled out at several Regional Courts throughout South Africa.

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pre- and post-divorce parenting disputes in an immediate, non-adversarial, court-sanctioned private forum.14 Facilitation has also received judicial approval. In Schneider NO v Aspeling, a case which was heard in the Western Cape High Court and concerned two minor children of an unmarried couple whose father had died, Davis J made the following ruling regarding disputes around maintenance: Any dispute in regard to the payment of any medical expenses defined herein shall be referred to a FAMAC-appointed15 facilitator who shall be entitled to facilitate the dispute and make a ruling that is binding on both parties, unless it is varied by a court of competent jurisdiction, alternatively, varied by the facilitator following a separate review. The costs of the facilitator shall be shared equally between the parties unless directed to the contrary by the facilitator.16 Further on in his judgment Davis J made the following ruling regarding disputes around contact: ‘In the event of there being any dispute regarding contact, howsoever arising, it is agreed to the matter being referred to a facilitator as set forth in para 4.8 above’.17 The inclusion of a facilitation clause in a divorce order is a choice made by parents when they decide to get divorced or separated. There is no legislation regarding facilitation in South Africa and parties to a divorce or separation are reliant on the advice of their attorneys or mediator when deciding whether to appoint a facilitator or not. If they agree to include facilitation as a way of resolving post-divorce or -separation disputes, the facilitation clause usually forms part of their parenting plan which is incorporated in their divorce order. If parents divorce or separate without the inclusion of a facilitation clause, they can vary the divorce order by agreement at a later stage to include a facilitation clause. The facilitator is frequently appointed either by name or by profession in terms of a court order. Facilitators are typically appointed from the mental health and legal professions.18 If no specific person has been appointed to act 14 15 16 17 18

De Rebus, July 2013, 38–41. Family Mediation Association of the Cape (hereafter famac). Schneider no and others v aa and Another 2010(5) sa 203 wcc p. 222 para. 4.8. Schneider no and others v aa and Another 2010(5) sa 203 wcc p. 223 para. 5.5. The author is a PhD candidate at Utrecht University in the Netherlands, and this information, which forms part of the study, was obtained by scrutinising all divorce orders issued in the Western Cape High Court from January 2008 till December 2013 (hereafter, personal

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as facilitator, the parents are required to reach agreement on who will be appointed as facilitator, failing which the chairman of an organisation such as famac will appoint the facilitator. The facilitator is mandated to resolve disputes. The types of disputes that the facilitator is mandated to resolve are usually clearly (or sometimes not so clearly) described in the facilitation clause. In 2008 famac developed a standard facilitation clause19 which has been generally accepted by the legal fraternity and has to date been included (with or without variations) in more than 3,000 divorce orders issued in the Western Cape High Court between 2008 and 2013.20 The facilitation clause typically authorises the facilitator to mediate joint decisions in respect of the minor child or children and to review contact arrangements having regard to the best interests of the children.21 Should the facilitator not be able to settle a dispute through mediation, the facilitator is mandated to issue a directive which shall be binding on the parties unless or until a court of competent jurisdiction holds that such directive is not in the children’s best interests.22 A similar post-divorce or -separation dispute resolution mechanism exists in the United States and Canada and is referred to as ‘parenting coordination’.23 There are significant differences between parenting coordination and facilitation, but they do not fall within the scope of this chapter. A detailed description of parenting coordination can be found in the afcc guidelines produced in 2005.24 The introduction of facilitation became a popular and effective way of r­esolving these disputes, both with regard to time and costs. Only one

19 20 21 22 23

24

research). From about 2011 onwards, many divorce orders refer to the appointment of a ‘facilitator who shall be conversant with working with children and families in the context of disputed care’ and no mention was made of a specific professional category. famac trains facilitators who are accredited mediators and who are typically mental health or legal practitioners. In the usa and Canada, the afcc and bc guidelines, produced in 2005 and 2011 respectively, require that parenting coordinators are mental health or legal practitioners with specific experience and training. See Addendum A to this chapter. Personal research. S. 7 Children’s Act. See Addendum A to this chapter. Kelly J ‘Origins and Development of Parenting Coordination’ in Higuchi SA & Lally S (eds) Parenting Coordination in Postseparation Disputes: A Comprehensive Guide for Practitioners (2014) 13. Association of Family and Conciliation Courts Task Force on Parenting Coordination ‘Guidelines for parenting coordination’ (2006) 44(1) Family Court Review 164–181.

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­ rofessional is involved, the process is informal in nature and a decision can p be made within a relatively short period of time. The case discussions below will highlight the need for speedy resolution of the disputes. The number of parents who have chosen facilitation as a method for resolving disputes has increased from about 35 per cent in 2008 to almost 70 per cent in 2012 and 2013.25 In addition to speedy dispute resolution, facilitation aims to minimise the impact of parental acrimony on children, improve the quality of parenting post-divorce or -separation to the benefit of the entire family including the children, and to ‘avoid or minimize further legal or administrative proceedings in relation to the child’.26 The negative effects of parental acrimony on the well-being of children post-divorce has been well researched, and Kelly regards parental conflict and violence as one of the biggest risk factors influencing post-divorce or -separation adjustment in children.27 Facilitation also has an educational component in that it aims to assist parents to learn how to resolve disputes regarding their children between themselves. 3

The Voice of the Child in Dispute Resolution

3.1 The Voice of the Child as Described in the Children’s Act Two sections of the Children’s Act make specific reference to the voice of the child and to child participation. Section 10 stipulates that every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.28 Section 31 requires that due consideration has to be given to the ‘views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development’29 before a decision is made in respect of a child. A child is defined in the Act as a ‘person under the age of 18’.30 25 26 27

28 29 30

Personal research. S. 7(1)(n) Children’s Act. Kelly JB ‘Paternal involvement and child and adolescent adjustment after separation and divorce: Current research and implications for policy and practice’ Paper presented at the second International Family Law and Practice Conference (2013) London. S. 10 Children’s Act. S. 31(1)(a) Children’s Act. S. 17 Children’s Act.

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Divorce orders often state specifically that a facilitator may meet with a child to hear his or her views regarding a particular dispute. However, understanding the parameters of developmental psychology and being able to ­engage with children in such a way that their true voices, unencumbered by parental alienation or fear, can be heard is a skill that requires extensive training and relevant experience. The facilitator can also obtain the voice of the child through the child’s teachers, therapist or any other relevant person, but must bear in mind that they will invariably put their own interpretation or slant on what the child tells them. In the author’s experience as a psychologist, parents sometimes show resistance to the facilitator’s consulting with the child or children, because they are of the view that children should not decide the disputes. It is made clear to the parents that Sections 10 and 31 of the Children’s Act oblige one to ascertain the views of the child, but it is important to note what Davel and Skelton point out in this regard: [N]either s 10 nor s 31(1) transfers the power or the duty to make a decision on the particular matter to the child. The child simply has the right to participate and to have due consideration afforded to his or her views and wishes, bearing in mind his or her age, maturity and stage of development. Thus it is not the child’s ability to make an informed decision which is relevant, but his or her ability to participate and to make his or her views and wishes known.31 Again in the author’s experience, direct consultation with a child, coupled with collateral information from others such as teachers and therapists, provides the best opportunity to hear the child’s views accurately. That the ability accurately to obtain the voice of a child is necessary in facilitation became apparent when a recent survey amongst facilitators practicing in the Western Cape revealed that 100 per cent of facilitators had facilitated disputes around contact (regular contact, holiday contact, primary residence), whereas only 25 per cent of them indicated they had spoken to children directly.32 While it remains unclear how the facilitators who did not speak to the child or children directly obtained their views on a matter such as a change in contact arrangements, the possibility exists that these facilitators may have relied solely on the opposing views of the parents in order to resolve the dispute. 31 32

Davel CJ & Skelton AM (eds) Commentary on the Children’s Act revision service 6 (2013) 3–34. This information was obtained from the responses to a questionnaire sent to all facilitators in the Western Cape registered with famac. The questionnaire formed part of the personal research referred to earlier.

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Hearing the voice of the child focuses the dispute away from the parents to the child and allows parents the opportunity, through feedback from the facilitator, to become aware of how the child experiences the dispute and the acrimony surrounding it. 3.2 Obtaining the Child’s Voice Prior to speaking to a child to obtain his or her views, one needs to ascertain the child’s ‘age, maturity and stage of development’.33 This could incorporate a developmental history of the child concerned. The facilitator who intends speaking to the child needs to have an understanding of developmental psychology. Below are some examples of the factors that need to be taken into account when consulting with children.34 This is by no means a complete list, but it highlights the expertise required when consulting with young children. • School-age children rarely ask for clarification and instead try to answer questions they do not fully understand. • Young children are particularly deferential to adults’ beliefs, an attitude which can be conveyed through the questions they ask, the comments they make and their demeanour. • Young children create their own explanations if what they observe around them is not age-appropriate, such as when a very young child witnesses or experiences sexual abuse. • Avoidance is a common childhood strategy for coping with anxiety-provoking situations; accordingly, the child will simply make statements such as ‘I don’t know, I forgot’, or change the topic. • It is better to ask open-ended questions that require a narrative multi-word response than a question that requires a yes/no response. • The language and culture of the child is very important. In some cultures it is regarded as disrespectful for a child to make eye contact with an adult and this is therefore an indication of respect and not of dishonesty or evasiveness. The facilitator needs to be mindful of how the caregivers have prepared the child for the interview. When talking to children, there are always concerns 33 34

S. 31(1)(a) Children’s Act. Saywitz KJ ‘Developmental underpinnings of children’s testimony’ in Westcott HL, Davies GM & Bull RHC (eds) Children’s Testimony: A Handbook of Psychological Research and Forensic Practice (2002).

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around exposure, influence or coaching by their caregivers. The most extreme form of coaching is parental alienation.35 All of these factors can influence the information that the child will provide. Prior to the consultation, the facilitator needs to ensure that the possible fears of the child are addressed; children may be afraid they will get into trouble for what they say and that their parents will be told afterwards. Conflicted children require a lot of time to accept that it is their view that needs to be heard, not what they think their parents would want them to say. They need time to formulate their own views. The pace, breadth and depth of a consultation depends on many things, such as how a particular child copes with anxiety, the nature of the questions asked, or how conflicted the child is. The linguistic development of the child is of particular importance.36 The facilitator as child interviewer must be mindful of the fact that adult bias can be conveyed in tone of voice, facial expression or questions that suggest a particular answer. Young children often expect that the adult knows the answer and will therefore try to provide the correct answer. If the adult asks the same question again, the child may assume automatically that the previous answer was wrong and thus change the answer.37 4

Case Studies

The author has been appointed as a facilitator in more than 300 cases, all of which involved disputes between the divorced or separated parents of minor children. Prior to speaking to the children and/or their caregivers, the facilitator obtains an in-depth understanding of the current dispute and familiarises herself both with the dynamics between the parents as well as the background to the current dispute. The cases below were selected to demonstrate the paramount importance of obtaining the views of the children concerned, and it is 35

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37

Gardner RA ‘Parental alienation syndrome vs parental alienation: Which diagnosis should evaluators use in child custody disputes’ (2002) 30(2) American Journal of Family Therapy 93–115. Walker AG Handbook on Questioning Children: A Linguistic Perspective 3 ed (2013); Saywitz K & Camparo L ‘Interviewing child witnesses: A developmental perspective’ (1998) 22(8) Child Abuse and Neglect 825–43. Saywitz KJ ‘Developmental underpinnings of children’s testimony’ in Westcott HL, Davies GM & Bull RHC (eds) Children’s Testimony: A Handbook of Psychological Research and Forensic Practice (2002).

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submitted that without obtaining these views, the facilitator would not have ensured that the children’s best interests were served. None of the scenarios describes a specific case. 4.1 Choice of High School 4.1.1 Background The divorced parents of a 13-year-old boy were unable to come to agreement regarding which high school their son should attend. In terms of their parenting plan, the choice of school was to be decided jointly between them. They had opted for a facilitation clause in their consent paper which empowered the facilitator to facilitate disputes around joint decisions. The father was of the view that his son should simply attend his alma mater. The mother, who was an artist, indicated that her son was very artistic and should therefore attend a school which emphasised arts and culture. Neither parent had asked their son which school he wanted to attend. There was also a belief among the parents that the child ought not to be asked, since choice of school was considered a parental decision. 4.1.2 Consultation with the Child The child concerned presented as a mature child who was able to engage with the facilitator and present his views clearly. Together with one of his teachers, he had prepared a list of the advantages and disadvantages of the schools proposed by his parents as well as a third school which was his choice. He had also attended the open days at each of the three schools. A further consultation with two of the child’s teachers revealed that he was generally regarded as a mature boy for his age and that his input should be sought in this matter. The child’s lists were a crystallisation of what he regarded as important, and he had taken into account factors such as the variety of subjects offered at each school, sports and art facilities, the societies and clubs offered by each school, the costs of extracurricular activities, the entrance requirements of each school, and which of his primary-school friends were going to each school. From the consultation it was clear that the child had given due consideration to the options available to him, possibly more so than his parents, who were at that stage still locked into wanting to win the dispute by attempting to obtain a directive in favour of their particular choice. 4.1.3 Directive After discussions with the parents, they admitted that neither of them had considered the third school but also said it was acceptable to them. In this case it was not necessary to issue a directive, since the parents agreed that the child should attend the school of his choice.

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4.2 Contact Arrangements for an Autistic Child 4.2.1 Background The divorced parents of an 11-year-old boy were unable to come to agreement regarding the amount of contact the father should have with his son. They had opted for a facilitation clause in their consent paper which empowered the facilitator to facilitate disputes around contact. The child resided primarily with his mother. The child was severely autistic and, at age 11, was still pre-verbal. He had been assessed by many professionals and there was no dispute around the diagnosis. Both parents had read extensively about their child’s difficulties. The child attended a school for autistic children. The father’s request for contact was well within the usual contact arrangements for an 11-year-old child; the father had requested contact on alternate weekends from a Friday after school until Sunday afternoon and Wednesday overnight contact during the week in which there was no weekend contact. 4.2.2 Consultation with Teachers and Carers Direct consultation with the child was not possible in this case. The facilitator arranged a visit to the school to observe the child and to meet with his teachers, therapists and caregivers. It is submitted that without observing the child himself, the author’s knowledge and understanding of the child would have been based only upon the professional reports which were made available as well as the author’s theoretical knowledge and understanding of autism. In spending time in the child’s classroom and meeting with the relevant adults involved in his care, it became clear that the seemingly normal contact arrangements requested by the father were entirely inappropriate for this child and were likely to cause the latter great psychological distress. 4.2.3 Directive A directive was issued allowing for limited contact with the father, with the proviso that the contact would be increased based on the child’s ability to adjust to additional contact. The directive made it clear that the limited contact was the result not of any deficiency in the father’s ability to care for his child but of the child’s restricted ability to cope with changes in his environment. 4.3 Parental Alienation 4.3.1 Background The divorced parents of a 7-year-old girl were unable to come to agreement regarding the amount of contact the father should have with his daughter. They had opted for a facilitation clause in their consent paper which empowered the facilitator to facilitate disputes around contact. The child resided primarily­

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with her mother, and the father had had limited contact with his daughter from the time of his separation from the mother two years before. Since then, the father’s contact had been supervised by the child’s mother, and consisted of one hour per week at a coffee shop with a playground attached to it. The father had now requested unsupervised overnight contact. The mother claimed that the child did not want to see her father and that she allowed contact only because she had been advised to do so by her attorney. She was reluctant to have the facilitator consult with the child, since she believed such a process would be traumatic for her daughter. The mother presented the facilitator with several negative statements which she claimed her child had made about the father. They included allegations that the child had witnessed the father physically abusing the mother when the child was about 1 year old; that the father responded to the child as one would to a dog, by flicking his fingers at her; and that the mother’s new partner was a better father. She also said the father bought inferior-quality presents for her daughter. The father admitted to a physical argument with the mother, but, in his recollection, the child had not been present. He indicated that he would clap his hands when he saw his daughter and call her to him. 4.3.2 Consultation with the Child A consultation was arranged in which the facilitator consulted with the child on her own; after half an hour, the father arrived and his interaction with his daughter was observed. The child separated easily from her mother, walked confidently into the facilitator’s room and asked to sit down. She proceeded to rattle off, almost verbatim, all the negative statements that her mother had presented regarding the father. Once she was finished, she asked the facilitator if she could play. When the father arrived, she appeared overjoyed to see him and they played together for the remainder of the consultation. There was a good reciprocal connectedness between them. The father brought some toys, but the daughter did not touch them. Upon direct questioning by the facilitator, the child indicated that she had been warned by her mother not to play with anything that her father would give her, because it was ‘rubbish’. When the mother entered the room, she (the mother) immediately described the toys, which at that stage were still in a packet, as ‘rubbish’. 4.3.3 Directive It was clear both from the information provided in the consultation with the child as well as from the observations of the child’s interactions with her

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parents, that she had been coached by her mother to make certain statements regarding the father. Her behaviour towards her father did not support these statements. On further investigation, there appeared to be no valid reason why the father’s contact should be supervised, and a directive was issued which contained increased unsupervised contact. 5 Conclusion In resolving disputes between divorced or separated parents, the facilitator, in the first place, has to attempt to mediate the dispute. The mediation process exposes the facilitator to background information to the dispute and helps him or her to gain an understanding of each parent’s perception of the needs of their child or children. The Children’s Act and the divorce order make provision for child involvement in the dispute-resolution process. The facilitator is in the unique position of being familiar with the disputing parents, the dynamics of their interpersonal interactions and the background to their dispute before approaching the child concerned. In addition, the facilitator has access to information provided by teachers, therapists and other caregivers. With appropriate training and experience, the facilitator is able to obtain the views of the child around whom there is a dispute. These views are then made available to the parents for discussion. In some instances this assists the parents in coming to an agreement regarding their dispute. In instances where no agreement is reached, the facilitator is authorised to make a decision, and the information gleaned from the child helps the facilitator to make a decision that is in the best interests of the child. The case studies presented in this chapter demonstrate the necessity of child inclusion by highlighting the sometimes surprising and unexpected information obtained by consulting directly with a child or his or her caregivers, information, which would otherwise not have become available to assist the facilitator and the parents in coming to a decision in the best interests of the child. Bibliography Books

Davel CJ & Skelton AM (eds) Commentary on the Children’s Act revision service 6 (2013) Cape Town: Juta.

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Walker AG Handbook on Questioning Children: A Linguistic Perspective 3 ed (2013) Washington, D.C.: ABA Center on Children and the Law. Westcott HL, Davies GM & Bull RHC (eds) Children’s Testimony: A Handbook of Psychological Research and Forensic Practice (2002) New York: John Wiley & Sons.

Chapters in Books

Kelly J ‘Origins and development of parenting coordination’ in Higuchi SA & Lally S (eds) Parenting Coordination in Postseparation Disputes: A Comprehensive Guide for Practitioners (2014) APA. Saywitz KJ ‘Developmental underpinnings of children’s testimony’ in Westcott HL, Davies GM & Bull RHC (eds) Children’s Testimony: A Handbook of Psychological Research and Forensic Practice (2002).

Articles

Association of Family and Conciliation Courts Task Force on Parenting Coordination ‘Guidelines for parenting coordination’ (2006) 44(1) Family Court Review 164–81. De Jong M ‘Is parenting coordination arbitration?’(July 2013) De Rebus 38–41. Gardner RA ‘Parental alienation syndrome vs parental alienation: Which diagnosis should evaluators use in child custody disputes’ (2002) 30(2) American Journal of Family Therapy 93–115. Kelly JB ‘Paternal involvement and child and adolescent adjustment after separation and divorce: Current research and implications for policy and practice’ Paper presented at the second International Family Law and Practice Conference (2013) London. Saywitz K & Camparo L ‘Interviewing child witnesses: A developmental perspective’ (1998) 22(8) Child Abuse and Neglect 825–43.

Reports

Hoexter Commission Fifth and Final Report, Part B, Commission of Enquiry into the Structure and Functioning of the Courts RP78/1983.

Research in progress

Martalas AM Alternative Dispute Resolution after Divorce or Separation: Evaluating ­Facilitation as Applied in South Africa (Western Cape Province) and Exploring its Introduction in the Netherlands (Uncompleted PhD thesis, Utrecht University, the Netherlands). This research is supervised by Prof. K. Boele-Woelki (UU) and Prof. M. de Jong (UNISA).

Cases

MB v NB 2010 (3) SA 220 (GSJ). S v J (SCA) (unreported case no 695/2010) 19 October 2010.

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Schneider NO and others v AA and Another 2010(5) SA 203 WCC. Townsend-Turner and another v Morrow (2004)1 All SA 235 (C). Van den Berg v le Roux (2003) All SA 599 (NC).

Legislation

Arbitration Act 42 of 1965. Children’s Act 38 of 2005.

Addendum A Dispute Resolution Clause prepared by the Family Mediation Association of the Cape (famac) 2008: 1.

In order to resolve disputes arising from the parties’ exercising their parental rights and responsibilities as specified in this agreement, the parties agree that a facilitator be appointed to resolve disputes by mediation, or, if mediation is not successful, by making directives as a facilitator in accordance with the following: 1.1 The facilitator, who shall act as an expert and not as an arbitrator, shall be a mediator who has been accredited for at least three years by the Family Mediators’ Association of the Cape (famac) or its successor in title, or who is recognised by the chairperson for the time being of famac as having the requisite expertise. The facilitator shall be appointed by agreement between the parties, failing which either party, or the parties jointly, may in writing request the chairperson for the time being of famac to appoint a facilitator; 1.2 The facilitator shall continue to act until he/she resigns, or both parties agree in writing that his/her appointment shall be terminated, or his/her appointment is terminated by an order of a Court having jurisdiction. If the facilitator’s appointment is terminated or he/she resigns, he/she shall be substituted by another facilitator appointed in accordance with the terms of this Agreement. 1.3 If the parties are unable to reach agreement on any issue ­concerning the children’s best interests and/or any issue where a joint decision is required in respect of the children, the dispute shall be formulated in writing and referred to the facilitator who shall attempt to resolve the dispute by way of mediation as speedily as possible: 1.3.1 If the facilitator, in the exercise of his/her sole discretion, regards a particular issue raised by one of the parties as trivial or unfounded, he/she is authorised to decline the referral of such issue;

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1.3.2 If the facilitator is unable to resolve a dispute by way of mediation he/she may resolve the dispute by issuing a directive which shall be binding on the parties subject to the provisions herein (especially but not limited to paragraph 1.4.3 below); 1.3.3 Each party and the children (if necessary) shall participate in the dispute resolution process as requested by the facilitator; 1.3.4 The facilitator shall use his/her discretion in considering the weight and sufficiency of information provided and may expand their enquiry as they deem necessary. Each party agrees to give the facilitator the power to gather information through interviews, correspondence, email, telephonic and/or other informal means, and to make his/her recommendations upon the information provided and obtained; 1.3.5 No record need be kept of the findings, decisions and recommendations of the facilitator and the grounds therefor. No communications made by the facilitator in issuing directives shall be deemed to be privileged as to the Court, the participants, their legal representatives and others or any mental health professionals assessing or treating the children; 1.3.6 The facilitator shall determine the protocol of all communications, interviews and sessions, including who shall or may attend meetings. Legal representatives shall not be entitled to attend such meetings, but a party shall be permitted to caucus privately with his or her legal representatives, either in person or by telephone, during such meetings. The parties and their attorneys shall have the right to initiate or receive communication with the facilitator. Any party or counsellor may communicate in writing with the facilitator provided that copies are provided to the other party, and if applicable, their legal representatives; 1.3.7 The facilitator may confer individually with the parties and with others, including step-family members, extended family members and friends, permanent life partners, household members, school and educational personnel, care providers, healthcare providers for the children and therapists for the children and the parties, and the parties authorise such persons to provide information to the facilitators; 1.3.8 The facilitator is authorised to appoint such other person as may be deemed by the facilitator necessary in order for the facilitator to make a decision in respect of the issue in dispute. 1.4 The facilitator is authorised to

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1.4.1 Mediate joint decisions in respect of the children having regard to the best interests of the children; 1.4.2 Regulate, facilitate and review the contact arrangements in respect of the children having regard to their best interests; 1.4.3 Issue directives binding on the parties on any issue concerning the children’s welfare and/or affecting their best interests which directive shall be binding on the parties unless or until a Court of competent jurisdiction holds that such directive is not in the children’s best interests; 1.4.4 Resolve conflicts relating to the clarification, implementation and adaptation of this agreement or any subsequent parental responsibilities and rights agreement having regard to the best interests of the children; 1.4.5 Require the parties and/or the children to participate in psychological or other evaluations or assessments. 1.5 The facilitator shall, when required to issue directives, do so based on his/her professional opinion and shall not act in a quasi-judicial capacity nor shall he/she act as an arbitrator. The facilitator is not appointed as psychotherapist, counsellor or legal representative for the children or either of the parties. The parties record that they are aware of their right to consult appropriate professionals in these fields as and when necessary. 1.6 All participants, including the facilitator, the parties and legal representatives, shall use their best efforts to preserve the privacy of the family and, more particularly, the children and restrict dissemination of information related to decisions to those who need to know the information. 1.7 Neither party may initiate Court proceedings for the removal of the facilitators or to bring the Court’s attention to any grievances regarding the performance or actions of the facilitator without first setting out the grievance in writing, making copies available to the other party and the facilitator, and then meeting and conferring with the facilitator in an effort to resolve the grievance. If after such a meeting the matter remains unresolved and Court proceedings are initiated, a copy of such proceedings must be delivered to the facilitator personally and the party initiating the proceedings shall be required to furnish written proof to the Court that this has been done. 1.8 In the event that a party fails to participate in any dispute resolution process despite having been requested to do so by the facilita-

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tor, or fails to attend a dispute resolution session, or fails to reply to the facilitator’s communications within five days, which communications may be by telephone, email or fax, or fails to pay the ­facilitator’s costs upon request, or fails to co-operate in the dispute resolution process in any other way, the facilitator shall proceed with the dispute resolution process in the absence of that party. In such circumstances the facilitator shall be entitled to issue a directive and his/her decision shall be binding on both parties until such decision has been varied by a court of competent jurisdiction. 1.9 Each party shall be liable for one half of the costs of the facilitator, unless otherwise determined by the facilitator. The facilitator shall be empowered to direct that a party shall refund the costs of the dispute resolution process, or part thereof, to the other party in appropriate cases. The facilitator may decline to convene meetings or to issue directives until such time as his/her costs and the costs of any other person appointed in terms of 1.3.8 above have been paid.

chapter 45

Juvenile Justice and Adolescence: A Comparison within the Kingdom of the Netherlands Annemarie Marchena-Slot Abstract Despite a common origin, notable differences can be found concerning juveniles and adolescents when comparing the five sanction systems of the Kingdom of the Netherlands. This chapter addresses these differences, taking into the account the reservations made by the Kingdom to article 37(b) and (c) crc in relation to domestic laws on the topic. What is striking, however, is that everywhere in the Kingdom 16- and 17-yearolds can be sanctioned as adults even though juvenile justice systems for children aged 12 to 18 are in place in all jurisdictions. To be more CRC-compliant, it is strongly recommended that all laws should be revised in this regard to make the reservation to 37(c) crc obsolete. Regarding adolescents, it is concluded that no country in the Kingdom has special provisions for people over the age of 18 differing from those for juveniles and adults. Adolescents can be sentenced as juveniles when certain criteria are met; in the Netherlands the provision includes 22-year-olds; in Curaçao, Aruba and Sint Maarten the cut-off age is 20. From a crc perspective, special provisions in domestic law for all adolescents aged 18 to (at least and including) 23 are recommended.

1 Introduction The un Convention on the Rights of the Child (crc)1 provides special provisions for children. Article 1 defines a child as ‘every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier’. In all jurisdictions within the Kingdom of the Netherlands (hereinafter, the Kingdom) childhood ends at the age of 18years, when majority is attained.2 When comparing the juvenile sanction systems of the different countries of the Kingdom, notable differences can be found. In particular, 1 Adopted by the un General Assembly on 20 November 1989 (A/Res/44/25). 2 See Art. 1:233 Burgerlijk Wetboek Nederland (Civil Code of the Netherlands), Article 1:233 Burgerlijk Wetboek van Curaçao; article 1:233 Burgerlijk Wetboek van Sint Maarten; article 1:233 Burgerlijk Wetboek van Aruba; article 1:233 Burgerlijk Wetboek bes.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_046

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these differences concern juveniles who reach the age of majority and (thus) adolescents, more so since the constitutional reforms of 10 October 2010.3 Since these reforms, the Kingdom of the Netherlands consists of five jurisdictions. Apart from its European territory, the country the Netherlands, its Caribbean territory now consists of the countries Curaçao, Aruba and Sint Maarten, each with its own government.4 Caribisch Nederland (the Netherlands in the Caribbean or the Dutch Caribbean) consists of the islands of Bonaire, Sint Eustatius (Statia) and Saba. In legislation the islands are often abbreviated as ‘bes’. They are public bodies of the Netherlands.5 Their position is similar to that of Dutch municipalities;6 however, they have their own legislation in many areas. This chapter first addresses the common origin of juvenile justice in the Kingdom, after which the reservations made by the Kingdom to the crc are discussed in relation to the domestic laws on the topic (Sections 2 and 3). In Section 4 the issue of ‘adolescence’ and criminal responsibility is considered in general. This serves as a bridge to the core of the chapter, Section 5, which examines criminal legislation in the various countries of the Kingdom and the differences between their sanction systems for juveniles and adolescents. Conclusions are presented in Section 6. 2

The Common Origin of Juvenile Justice in the Kingdom

All juvenile criminal law in the Kingdom has a common origin that goes back to the introduction of special sanctions for juveniles in the justice system in the Netherlands in 1901, when a trio of acts concerning children was introduced that entered into force in 1905.7 These laws were later also adopted in 3 The constitutional structure of the Kingdom of the Netherlands is laid down in the Charter of the Kingdom of the Netherlands: Statuut voor het Koninkrijk der Nederlanden (Stb. 1954, no. 503, last amended 1 November 2010, Stb. 2010, 775 (hereinafter, Statuut)). 4 Art. 1(1) Statuut. 5 Art. 1(2) Statuut. 6 With adjustments for their small size, their distance from the Netherlands and their geographic situation in the Caribbean region. 7 In February 1901 three acts regarding juveniles were introduced in Dutch legislation. One consisted of changes and supplements to the Civil Code’s provisions on paternal authority and custody, Wet tot wijziging en aanvulling van de bepalingen in het Burgerlijk Wetboek omtrent vaderlijke macht en de voogdij en daarmee samenhangende artikelen van 6 februari 1901 (Stb.1901, 62). The second act brought about changes in the punishments and criminal procedure law for young persons, Wet houdende wijziging in de bepalingen betreffende straffen en de strafrechtspleging ten aanzien van jeugdige personen van 6 februari 1901

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the overseas colony that would become the country the Netherlands Antilles (1954–2010).8 The act bringing about changes in criminal law for children in the islands of the former Netherlands Antilles entered into force on 1 January­ 1925.9 Until the constitutional reforms of 2010, the provisions of this act were law in all overseas territories of the Kingdom as part of the Antillean and Aruban Criminal Codes, respectively.10 To this day, an important commonality throughout the Kingdom is the fact that the special provisions in the Criminal (Procedure) Codes for juveniles centre around people aged 12 to 18 when infringing the law.11 Current differences between the special provisions for juveniles in the different jurisdictions of the Kingdom are addressed in Section 5. 3

Reservations to the crc and Juvenile Justice Laws in the Kingdom

Foreign affairs are a matter of the Kingdom.12 This means that only the ­ ingdom may conclude treaties, such as the crc.13 The ratification and, if apK plicable, the coming into force of a treaty, are matters decided on by each country. The crc, for instance, was entered into force in the Netherlands in 1995,14 in the former Netherlands Antilles in 1998 and in Aruba in 2001.15 For the ­purposes of this chapter, article 37(b) and (c)of the crc are of importance.

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(Stb. 1901, 63). The third act introduced principles and regulations on measures for young people, Wet houdende beginselen en voorschriften ten opzichte van jeugdige personen van 12 februari 1901 (Stb. 1901, 64). The (post-colonial) country the Netherlands Antilles was constituted in the original Statuut of 1954 (Stb. 1954, no. 503). Verordening houdende wijziging in de bepalingen betreffende de straffen en de strafrechtspleging ten aanzien van jeugdige personen (P.B. 1923, no. 36 and P.B. 1924, no. 36). The Criminal Code of the Netherlands Antilles, Wetboek van Strafrecht van de Nederlandse Antillen (P.B. 1913, no. 67) entered into force in 1918 (P.B. 1918, no. 6) and was last amended in 2008 (P.B. 2008, no. 46). The Criminal Code of Aruba originated from this same Code. After Aruba’s status aparte in 1986, the former Wetboek van Strafrecht van Aruba was adopted in 1991 (ab 1991, no. gt 50). Its contents concerning juvenile offenders corresponded with the regulations in the (Criminal Code of the) Netherlands Antilles. In all Criminal Codes and/or Criminal Procedure Codes in the Kingdom, the minimum age of criminal responsibility is 12 years (at the moment of committing the offence). Art. 3(1)(b) Statuut. Trb.1990, 46, The translation in Dutch of the crc was published in Trb.1990, 170. The source for the entry into force in the Netherlands as well as for the reservations made for the Kingdom of the Netherlands (by country) is Trb.1995, 62. The exact date for the Netherlands Antilles was 16 January 1998 (Trb. 1998, 62). For Aruba it was 17 January 2001 (Trb. 2001, 169). After 10 October 2010 the legal effects of the crc remained in the new countries and the bes.

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Paragraph (b) of article 37 stipulates that detention should be a means of last resort and should be used only for the shortest duration possible. Article 37 provides in paragraph (c) for separate detention of juveniles and adults. Before delving deeper into the domestic laws regarding juvenile justice and adolescence in the Kingdom, it is important to point out the reservations made by the Kingdom of the Netherlands to article 37(c) of the crc.16 To this day, the reservation made for the entire Kingdom stating that the provisions of article 37(c) ‘shall not prevent application of adult penal law to children of sixteen years and older, provided that certain criteria laid down by law have been met’ is both most important and subject to criticism.17 The criticism comes not least from the Committee on the Rights of the Child (hereinafter, the crc Committee), which on several occasions has insisted on change in this respect in its concluding observations on States Parties, among them the Kingdom of the Netherlands.18 It has also done so explicitly in its General Comment of 2007 on children’s rights in juvenile justice, recommending that States Parties change their laws to achieve ‘a non-discriminatory full application of their juvenile justice rules to all persons under the age of 18 years.’19 The point is discussed in the context of article 40 of the crc in paragraph 37 of this General Comment. For the overseas territories an additional reservation has been made,20 namely that a child which has been detained will not always be accommodated separately from adults, if the number of children that has to be detained at a certain time is unexpectedly large, (temporary) accommodations together with adults may be unavoidable. These reservations are still in place and, regardless of the insistence of the crc Committee, domestic laws have not changed according to the 16 See Trb. 1998, 62 for the texts of these reservations in Dutch. 17 I have discussed this critique more fully at a domestic level in Marchena-Slot AD Detentie van Jeugdigen in Curaçao (2012) Chap. 5 and 6. Recently, the Dutch Ombudsman for Children recommended as well that the reservation be lifted (Dutch Ombudsman for Children Ombudsperson Report on Children’s Rights in the Netherlands, nhri Report (2014) 3). 18 For example, CRC/C/NLD/CO/3 para. 78 and CRC/C/NLD/CO/4, para. 58. 19 CRC/C/GC/10 para. 38. In CRC/C/NLD/CO/4, para. 59 an explicit reference was made to the general comment of 2007. 20 At the time the reservation was made for the countries Aruba and the Netherlands Antilles. In the new countries this reservation is still valid since 2010.

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recommendations­made. The conclusion thus can be drawn that compromises are made to the very principle of having a special juvenile justice system applicable to all children (up to age 18). 4

Adolescence and Criminal Responsibility

The first question when addressing the topic of juvenile justice and adolescence would have to be whom to consider an adolescent. The debate about special provisions, mainly different sanctions (and conditions) for young people, has been spurred by results of studies in neuroscience and developmental psychology. Research in these areas has pointed to the relatively incomplete development of young adults.21 It indicates that many psychological functions relevant to presenting behaviour acceptable to society, mainly norm-abiding behaviour, only reach full development after the age of 20, often around 23 or 24.22 These functions include moderating impulse-driven behaviour, being conscious of long-term consequences, regulating emotions and developing an empathic ability.23 These are all factors that from a pedagogical perspective imply that such people cannot be held fully responsible for their criminal acts. In my opinion, this should be reflected in the law.24 The main legal argument to define adolescents as people of 18 years and older is derived from the crc, which stipulates special juvenile justice provisions 21

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24

Weijers I ‘De leeftijdsgrenzen’ in Weijers I & Imkamp F (eds)Jeugdstrafrecht in Internationaal Perspectief (2008) 269, 281. Weijers’s contribution provides a useful comparative study of various aspects of age limits in juvenile justice, where these limits are set in various countries and what they entail. Weijers I & Imkamp F ‘Knelpunten in ons huidige jeugdstrafrecht’ (2009) FJR7; Doreleijers tah Te oud voor het servet, te jong voor het tafellaken Inaugural speech, 8 May 2009, University Leiden. In Dutch literature on the subject, this is accepted as a fact. See Kempen mah ‘Het adolescentenstrafrecht; een flexibel sanctiestelsel voor jongvolwassenen’ (2014) 29 fjr. Previously, State Secretary Teeven from the Netherlands referred to these findings in his letter of 25 June 2011 to the president of the Second Chamber (of Parliament),when he initiated the criminal law reforms of 2014 for juveniles and adolescents. (Kamerstukken ii 2010/11, 28741, nr. 17 p. 2). The text of the law reforms of 1 April 2014 can be found in Stb. 2013, 485. Dünkel points out that the widespread European consensus on the role of young adults in juvenile justice legislation is reflected increasingly in national legislature. He calls the Dutch reforms of 1 April 2014 the most far-reaching, and cites Japan, Brazil and Nicaragua as examples of non-European countries concerning the scope of juvenile justice. See Dünkel F ‘Juvenile justice and crime policy in Europe’ in Zimring FE et al., (eds) Juvenile Jusitce in Global Perspective (2015) 27.

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in articles 1, 37 and 40 for all children till the age of 18. Any provisions in the law for adolescents would therefore have to be for people older than that. In my dissertation on juveniles and detention in Curaçao I therefore recommended that for the purposes of justice the debate on special provisions for adolescents should be geared towards the group of people who infringe the law when they are 18 to 23 years, as studies show that generally people (or people’s brains) have completely matured around the age of 24.2526 The crc Committee has expressed time and again that the reservation that allows for 16- and 17-year-olds to be treated as adults should be abolished. I share that viewpoint and advocate for the various criminal laws within the Kingdom to be changed so to conform more closely with the crc. Another reason for considering only adults 18 and older as adolescents in the context of penal law has to do with a certain risk. If one simply opens up the juvenile justice system to this age group, it might lead to reforms not benefitting the children, who are now the subject of juvenile justice and whose interests should be a primary consideration according to article 3 of the crc. 5

Juvenile Justice and Adolescence in the Different Territories

Against the backdrop above, we can now examine the legislation on juvenile justice and adolescence in the territories of the Kingdom of the Netherlands. 5.1 The Dutch Caribbean Juvenile justice in the Dutch Caribbean is still regulated (largely) as it was under the Antillean Criminal Code.27 This means that when choosing a sanction for juveniles, the options are limited. The two basic ones are berisping 25

26

27

Marchena-Slot AD Detentie van Jeugdigen in Curaçao (2012) para. 6.2.1. and p. 296. Inspired by the laws of many European countries, Weijers also recommended that the Netherlands seriously consider developing a sanction system especially for young adults (Weijers I ‘De leeftijdsgrenzen’ in Weijers I & Imkamp F (eds) Jeugdstrafrecht in Internationaal Perspectief (2008) 282). See also Doreleijers tah Te oud voor het servet, te jong voor het tafellaken Inaugural speech, 8 May 2009, University Leiden. When deciding on the upper age limit, policy-makers will undoubtedly take into consideration the severity of the crimes for which young adult offenders are tried and the historically tough justice in the Caribbean countries of the Kingdom. In my opinion, a systematic approach in which all offences of young adults are treated equally is most important when making choices regarding adolescent justice. For more insight into the Antillean juvenile justice system, see Marchena-Slot AD Detentie van Jeugdigen in Curaçao (2012) Chap. 5.

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(a stern speech from a judge) and geldboete (a fine). The special provisions for juveniles in criminal (procedure) law are geared towards the ages 12 to 18. The possibilities for detention-based sanctions for children in the Dutch Caribbean are as follows. The first possibility is by sentencing the juvenile to the measure of jeugd-TBR (ter beschikking stelling van de regering van een jeugdige). This continuous measure means that the juvenile is placed in an institution for juveniles for educational purposes on without periodic review by a judge. Although the basis for detention is continuous, the law provides for early (conditional) release at any given moment.28 Another form of juvenile detention is provided by application of adult penal law to 16- and 17-year-olds. There are no further criteria tied to this in the Criminal Code of the Dutch Caribbean. A juvenile can be sentenced to regular imprisonment for the same maximum duration as an adult.29 Related to adolescence is the possibility to follow a jeugd-TBR with regular detention for adults (for up to the maximum duration for adults). This possibility is slightly restricted to offences with at least a maximum detention-threat of three years.30 5.2 Curaçao, Aruba and Sint Maarten In 2011 the new Criminal Code was first introduced in Curaçao.31 This new legislation, which I refer to as the new Criminal Code, was originally intended to be adopted as a new Criminal Code for the Netherlands Antilles before its dissolution in 2010.32 In Curaçao it has been the current law for four years now.33 In Aruba the new Criminal Law entered into force on 15 February 2014.34 In the country Sint Maarten, the part of the island within the Kingdom, the provisions of the Criminal Code of the former Netherlands Antilles were still in 28

29 30 31

32 33 34

Arts. 41 and 41bisa Wetboek van Strafrecht bes, hereinafter Sr-BES (Stb. 2010, 528 as amended 1 May 2014, Stb.2014, 125 and Stb.2014, 149). Strikingly, article 41bis Sr-BES expired on 10 October 2010 in the Dutch Caribbean. This article used to provide regulations for the jeugd-TBR placement and its duration (normally till the age of 21 years). No new arrangement for this is found in Sr-BES. Art. 41septies Sr-BES. Art. 41ter Sr-BES. Due to the fact that all new Criminal Codes (of Curaçao, Aruba and Sint Maarten) were adopted after 10 October 2010, there are some differences between them (for example, the maximum duration of detention-based sanctions for adults). The commonalities are, however, so overwhelming, especially regarding juvenile justice, that in this chapter I have chosen to address the legislation of Curaçao, Aruba and Sint Maarten together. In the end it was not prioritised and thus there was no real concordance, which should be an aim of criminal law in the Kingdom, according to article 39 of the Statuut. P.B. 2011, 48 (text) and P.B. 2011, no. 49. It entered into force on 15 November 2011. ab 2012, no. 24 (text) and ab 2014, no. 12.

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place for the first five months of 2015.35 The framework provided for the Dutch Caribbean was also the one applicable here.36 Even though the new Criminal Code had been adopted in December 2012, it entered into force only in June 2015.37 The new Criminal Code brought many changes in the laws regarding juvenile justice:38 the range of sanctions has grown and now bears more resemblance to the Dutch ones.39 If one looks only at the names of the sanctions, one could be led to believe that the systems are identical to that in the Netherlands, but in this case appearances are deceptive.40 The range of sanctions to be chosen by a judge is summed up in article 1:164 CSr. First of all, a fine (geldboete); secondly, community service and/or a learning order (taakstraf), and thirdly, juvenile detention (jeugddetentie).41 These punishments are meant for juveniles who can be held fully criminally responsible. The measures for juveniles are not tied per se to full criminal responsibility. These include, amongst others, a measure for correction of behaviour (maatregel betreffende het gedrag van de jeugdige, abbreviated as gbm). This is typically a sanction without detention.42 The measures also include placement in an institution for juveniles (plaatsing in een inrichting voor jeugdigen, abbreviated as pij). This last measure entails detention and can be imposed for both educational and treatment purposes. The distinction impacts the maximum duration possible.43 A pij for treatment purposes can last for a maximum of six years. In other cases, four years is the limit.44 35

36 37 38 39 40

41 42 43 44

ab 2010, gt no. 1 and ab 2010, no. 30. The citation title has remained the same since 10 October 2010, as previously: Wetboek van Strafrecht van de Nederlandse Antillen (abbreviated: NASr). In this Criminal Code article 41 bis still exists, however. Cf. fn. 28 of this chapter. ab 2013, no. 2 (initial text) and ab 2015, no. 9. Hereinafter the new Criminal Code will be abbreviated as CSr (short for: Wetboek van Strafrecht Curaçao). The new provisions are found in Boek1, titel X of the CSr. For further insight into this new juvenile justice system, see Marchena-Slot AD Detentie van Jeugdigen in Curaçao (2012) Chap. 6. For more insight into the Dutch juvenile justice system, its sanctions and context, see De Jonge G & Van der Linden AP Jeugd en Strafrecht (2013); Bartels JAC Jeugdstrafrecht, studiepockets strafrecht (2013) and Uit Beijerse J Jeugdstrafrecht: Beginselen, Wetgeving en Praktijk (2013). Juvenile detention can be imposed only for serious offences. For more about gbm’s Dutch background see De Groot B ‘gbm: theorie en praktijk 6 jaar na invoering’ (2014) FJR24. Art. 1:174–76 CSr. pij is to be evaluated every two years by a judge. Its duration is initially two years and can continue for four more years in the gravest cases, when the youngsters continue to pose a

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The juvenile justice system in Curaçao, Aruba and Sint Maarten has four noteworthy aspects. The first is the possibility for juveniles who are sentenced to juvenile detention to have that sentence executed as a regular detention (for adults) if it is executed after reaching the age of majority.45 A second noteworthy provision entails the possibility of having a pij followed by a TBS-based detention.46 tbs is a punitive measure for adults entailing placement under an entrustment order.47 In the case of a detention based on tbs, the order includes compulsory treatment as well.48 TBS-based detention varies greatly in duration and, in some cases, after reviews, can lead to a lifelong stay in such institutions if one continues to be a threat to oneself or others.49 Considering the principle, stipulated in article 37(b) of the crc, that detention be a last resort and for the shortest appropriate time, the desirability of this provision is highly debatable, to say the least. tbs is not provided for in the Criminal Code of the Dutch Caribbean. A third aspect of the Curaçao, Aruban and Sint Maarten Criminal Codes that needs to be pointed out explicitly is the continued possibility to apply adult penal law to those aged 16 and 17 when committing the offence. In the new Criminal Codes of the Caribbean countries in the Kingdom, it is now tied to three cumulative criteria that did not exist previously. These are the personality of the offender, the circumstances under which the offence was committed and the seriousness of the offence.50 In the Netherlands the application of adult penal law is tied to only one of the three aforementioned criteria.51 In the Dutch Caribbean (and until recently in Sint Maarten) these criteria are not stipulated at all in the law, but the court (shared by the Caribbean

45 46 47

48 49 50 51

threat to themselves or others. This is different to the (former) jeugd-TBR in NASr where there was no periodic review by a judge. Art. 1:167 CSr. Art. 1:175 (5) CSr. Although the provisions for TBS (following PIJ) exist in the Sint Maarten Criminal Code as well, they have not yet entered into force in Sint Maarten. For extensive information about tbs, seeVan der Wolf MJF tbs Veroordeeld tot Vooroordeel (2012). For a concise comparison of tbs legislation in the Netherlands and in Caribbean countries, see Van Marle H & Van der Wolf M ‘De tbs-regelingen van Nederland en de Antillen: zoek de verschillen’ in Bleichrodt E et al., (eds) Onbegrensd Strafrecht (2013) 67–80. Art. 1:81–2 CSr. Provisions on duration of tbs, including conditional release, are found in arts. 1:91–7 CSr; art. 1:92 CSr is especially relevant. Art. 1:158 CSr. Art. 77b Wetboek van Strafrecht (abbreviated: NSr) published in Stb. 1881, no. 35, last amendment Stb.2014, no. 541.

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countries and territories of the Kingdom) does refer to them when applying adult penal law to these children.52 In Section 3 above these provisions have been critiqued already from a crc perspective. The last aspect, introduced in the new juvenile justice system of the Criminal Codes of Curaçao, Aruba and Sint Maarten, is a positive one. It concerns the possibility provided for in article 1:159 of the respective Criminal Codes to apply juvenile justice sanctions to people aged 18 to 20 when the offence was committed. This has introduced a special provision for adolescents in these Caribbean countries. Grounds for making use of it are found either in the personality of the offender or the circumstances under which the offence was committed. These articles in the respective Criminal Codes of Curaçao, Sint Maarten and Aruba are now identical to the provisions previously offered in article 77(c) of the Criminal Code of the Netherlands (until April 2014). When comparing the Criminal Codes of Curaçao, Aruba and Sint Maarten to the one in the Dutch Caribbean, this is a remarkable difference, seeing as no possibility exists for any adolescents in the Dutch Caribbean to be sentenced as juveniles. 5.3 The Netherlands In April 2014 the Dutch Criminal Code underwent some changes in relation to juvenile justice and adolescence after much debate in and out of Parliament. These laws initiated by State Secretary Teeven brought about changes that are characterised as creating a flexible sanction system for juveniles and young adults aged 16 to, but not including, 23years.53 The idea behind the reforms is to offer more possibilities for effective and individualised sanctioning, depending on the developmental phase of the offender.54 The possibility for adolescents to be sentenced as juveniles in the new article 77(c) of the Criminal Code of the Netherlands is tied to the same criteria 52

53

54

A recent example is a Dutch Caribbean case. On appeal, the juvenile was sentenced as an adult (ECLI:NL:OGHACMB:2013:38). This is simply a continuation of an existing practice. An important Antillean case in this respect, to illustrate the implications of article 41 septies (5) NSr, was the ‘Gato-case’ in Curaçao (the last sentence took place on 11 September 2008). It is discussed in Marchena-Slot AD ‘Naar aanleiding van de zaak Gato: het Antilliaanse jeugdstrafrecht’ (2008) TAR-Justicia 4 and its impact assessed in Marchena-Slot AD Detentie van Jeugdigen in Curaçao (2012) para. 5.4.1. For an evaluation of Dutch case law of the first nine months of these reforms, see ReijntjesWendenburg C ‘Het adolescentenstrafrecht: een evaluatie van de eerste negen maanden rechtspraak’ (2015) dd 21. Kamerstukken ii 2012–2013, 33498, nr. 3, p.1 (MvT) and previously Kamerstukken ii 2010/11, 28741, nr. 17.

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(personality of the offender or circumstances of the offence), as mentioned in the equivalent articles (1:159) of the Criminal Codes of Curaçao, Aruba and Sint Maarten. These juvenile sanctions to which adolescents can be sentenced include juvenile detention and pij.55 The Dutch pij varies by a year in maximum duration from the one in Curaçao, Aruba and Sint Maarten. It should be pointed out that, among other changes, the possibility to follow up a pij with a TBS-based detention was also introduced in the Dutch juvenile justice system in 2014, much like the possibility in Curaçao, Aruba and now Sint Maarten. It has drawn criticism as well; the Dutch Ombudsman for Children recommended the removal of the legal possibility to effectively impose a tbs measure on a minor.56 Evaluations in these jurisdictions on the actual use of this legal possibility should be considered. 6 Conclusion We can draw the following conclusions. The first is of a constitutional nature. Within the Kingdom of the Netherlands there are five different constitutional entities, each with its own legislation. Regarding juvenile justice and adolescence, there are vast differences between the jurisdictions. When addressing the topic of adolescence and juvenile justice, it is clear that the age of majority is 18 years and a juvenile justice system applicable for juveniles aged 12 to 18 is in place. However, everywhere in the Kingdom 16-and 17-year-olds can be sanctioned as adults, which is why the reservation to article 37(c) of the crc is still in place. In the view of the crc Committee this violates the crc. It is strongly recommended that all laws in the separate jurisdictions 55

56

Imposing these juvenile sentences on adolescents (18 and older) can result in detaining adults in juvenile detention centres. This can give rise to issues with the provisions of article 37(c) of the crc. However, it would be problematic only in cases where the best interests of the children (younger than 18) in these facilities would not be met because of non-separation from the adults. I think these issues could be addressed in a practical manner, perhaps by providing separate wings in juvenile detention centres for adolescents, especially considering the small scale of these facilities (in the island states) and that the alternative of placing young adults in adult facilities would not be advisable. This would be in line with the pragmatic way the un approaches young adult detention. See article 61 and its commentary in the Model Law on Juvenile Justice (un Office on Drugs and Crime Justice in Matters Involving Conflict with the Law (2013)). Dutch Ombudsman for Children Ombudsperson Report on Children’s Rights in The Netherlands, nhri Report (2014) 15.

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within the Kingdom be changed in a way that makes this reservation obsolete and allows for its abolition. The possibility in Curaçao, Aruba and the Netherlands to sentence a juvenile to pij followed by TBS-based detention is highly controversial, considering article 37(b) of the crc. Regarding adolescents, we can conclude that no country within the Kingdom has chosen to make special provisions for adolescents over the age of 18 that differ from those for juveniles and adults. Rather, the choice has been made to open the possibility for young adults to be sanctioned as juveniles.57 This is not yet standard procedure, as it is presented as an exception for young adults who are developmentally equivalent to (vulnerable) juveniles. What this means is that most adolescents are regularly sentenced as adults. This is again linked to age. In the Netherlands, adolescents from 18 upwards, including 22-year-olds, can be sentenced to juvenile sanctions (77c NSr). In Curaçao, Aruba and Sint Maarten the age group is more limited, with the cut-off being the age of 20 (1:159 CSr). Although the Dutch age group is preferable, special provisions for all adolescents aged 18 to (at least including) 23 are far more preferable.58 The crc Committee has concentrated so far on juvenile justice, due to the scope of the crc. As mentioned in the introduction, juveniles fall within the scope of the definition of children. Considering the debate on adolescence and (juvenile) justice, a General Comment of the crc Committee on this topic in the near future would be most welcome. Bibliography Books

Bartels JAC Jeugdstrafrecht, studiepockets strafrecht (2013) Deventer: Kluwer. De Jonge G & Van der Linden AP Jeugd en Strafrecht (2013) Deventer: Kluwer. Marchena-Slot AD Detentie van Jeugdigen in Curaçao (2012) Nijmegen: Wolf Legal Publishers. 57 58

For criminal procedure, the Criminal Procedure Code is applicable once a person has reached the age of 18 years. Of course, much more can be said on the topic of interregional juvenile justice. This chapter, for instance, does not discuss the execution-related challenges of detention in the Caribbean part of the Kingdom and the interregional possibilities for execution of sentences in these small island developing states.For further reading, seeMarchena-Slot AD ‘Jeugdigen en vrijheidsbeneming in de West’ in Bleichrodt E et al., (eds) Onbegrensd Strafrecht (2013) 53–66.

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Uit Beijerse J Jeugdstrafrecht:Beginselen, Wetgeving en Praktijk (2013) Apeldoorn: Maklu. Van der Wolf MJFTBS Veroordeeld tot Vooroordeel(2012) Oisterwijk: Wolf Legal Publishers.

Chapters in Books

Dünkel F ‘Juvenile justice and crime policy in Europe’ in Zimring FE et al., (eds) Juvenile Jusitce in Global Perspective (2015) 9–62. Marchena-Slot AD ‘Jeugdigen en vrijheidsbeneming in de West’ in Bleichrodt E et al., (eds) Onbegrensd strafrecht (2013) 53–66. Van Marle H & Van der Wolf M ‘De TBS-regelingen van Nederland en de Antillen: zoek de verschillen’ in Bleichrodt E et al., (eds) Onbegrensd Strafrecht (2013) 67–80. Weijers I ‘De leeftijdsgrenzen’ in Weijers I & Imkamp F (eds) Jeugdstrafrecht in Internationaal Perspectief (2008) 269–82.

Articles

De Groot B ‘GBM: theorie en praktijk 6 jaar na invoering’ (2014) 24 FJR 102–08. Kempen MAH ‘Het adolescentenstrafrecht: Een flexibel sanctiestelsel voor jongvolwassenen’ (2014) 29 FJR 122–27. Marchena-Slot AD ‘Naar aanleiding van de zaak Gato: Het Antilliaanse jeugdstrafrecht’ (2008) 4 TAR-Justicia 269–82. Reijntjes-Wendenburg C ‘Het adolescentenstrafrecht: Een evaluatie van de eerste negen maanden rechtspraak’(2015) 21 DD 199–214. Weijers I & Imkamp F ‘Knelpunten in ons huidige jeugdstrafrecht’ (2009) 7 FJR 16–20.

Reports and Policies of (non-)Governmental Bodies

Committee on the Rights of the Child, Concluding Observations on the fourth periodic report of the Netherlands (CRC/C/NLD/CO/4, 8 June 2015).United Nations Office on Drugs and Crime Justice in Matters Involving Conflict with the Law (2013) New York, available at https://www.unodoc.org/documents/justice-and-prison-reform/ Justice_Matters_Involving-Web_Version.pdf (accessed 11 December 2015). Committee on the Rights of the Child, Fifteenth session, Consideration of reports submitted by States Parties under article 44 of the Convention, Concluding Observations: Netherlands (CRC/C/NLD/CO/3, 27 March 2009). Committee on the Rights of the Child, General Comment No. 10 (2007) on children’s rights in juvenile justice (CRC/C/GC/10, 27 April 2007). Dutch Ombudsman for Children Ombudsperson Report on Children’s Rights in the Netherlands, NHRI Report (2014), available at http://www.dekinderombudsman.nl/ ul/cms/fck-uploaded/DutchOmbudsmanChildrenCRC2014Online.pdf (accessed 15 January 2015).

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Cases

ECLI:NL:OGHACMB:2013:38

Legislation and Official Publications of Parliament by Jurisdiction

The Kingdom of the Netherlands Statuut voor het Koninkrijk der Nederlanden (Stb. 1954, no. 503, lastly amended Stb. 2010, 775). Ratification of United Nations Convention on the Rights of the Child. Trb. 1990, 46 (text). Trb. 1990, 170 (translation in Dutch). Trb. 1995, no. 62 (entry into force in the Netherlands and text reservations). Trb. 1998, no. 62 (entry into force in the Netherlands Antilles). Trb. 2001, no. 169 (entry into force in Aruba).

Aruba

Wetboek van Strafrecht Aruba (AB 2012, no. 24 (text) and AB 2014, no. 12). Wetboek van Strafrecht Aruba (AB 1991, no. GT 50), no longer in effect.

Curaçao

Burgerlijk Wetboek Curaçao (P.B. 2000, no. 178 and P.B. 2001, 24, last changed P.B. 2011, no. 64). Wetboek van Strafrecht Curaçao (P.B. 2011, 48 (text) and P.B. 2011, no. 49). Wet van 27 november 2013 tot wijziging van het Wetboek van Strafrecht, het Wetboek van Strafvordering en enige andere wetten in verband met de invoering van een adolescentenstrafrecht (Stb. 2013, 485 and Stb. 2014, no. 33).

The Netherlands

Burgerlijk Wetboek Boek 1 (as last changed Stb.2014, 541). Wetboek van Strafrecht (Stb. 1881, no. 35, last changed Stb.2014, no. 541). Wet houdende beginselen en voorschriften ten opzichte van jeugdige personen van 12 februari 1901 (Stb. 1901, 64). Wet houdende wijziging in de bepalingen betreffende straffen en de strafrechtspleging ten aanzien van jeugdige personen van 6 februari 1901 (Stb. 1901, 63). Wet tot wijziging en aanvulling van de bepalingen in het Burgerlijk Wetboek omtrent vaderlijke macht en de voogdij en daarmee samenhangende artikelen van 6 februari 1901 (Stb.1901, 62).

Publications of the Dutch Parliament

Kamerstukken II 2012–2013, 33498, nr. 3 (MvT). Kamerstukken II 2010/11, 28741, nr. 17.

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The Netherlands Antilles

Wetboek van Strafrecht Nederlandse Antillen (P.B. 1913, no. 67, last changed P.B. 2008, 46).

The Dutch Caribbean

Burgerlijk Wetboek BES (Stb. 2010, 494, last changed Stb.2012, 313). Wetboek van strafrecht BES (Stb. 2010, 528, last changed Stb. 2015, 185).

Sint Maarten

Wetboek van Strafrecht Nederlandse Antillen (AB 2010, GT no.1 and AB 2010, no. 30), no longer in effect. Wetboek van Strafrecht Sint Maarten (AB 2013, no. 2 and AB 2015, no. 9).

Treaties and Conventions

United Nations Convention on the Rights of the Child (1989) (A/Res/44/25).

Miscellaneous

Doreleijers TAH Te oud voor het servet, te jong voor het tafellaken Inaugural speech, 8 May 2009, University Leiden, available at https://openaccess.leidenuniv.nl/ handle/1887/19714 (accessed 15 January 2015).

chapter 46

Juvenile Justice in the Republic of Kazakhstan: An Overview Anara Zholdybayeva Abstract This chapter analyses the experience of the Republic of Kazakhstan in implementing international standards for the protection of children’s rights in its 24 years of independence. The chapter describes the main sources of current international and Kazakhstan’s national legislation on juvenile justice. It focuses on pilot research projects which largely preceded the implementation of juvenile justice in Kazakhstan. It presents the statistics on juvenile crime for 2012–2013 as well as figures on the prevailing forms of juvenile offences and causes of juvenile delinquency. It also offers a detailed analysis of the unique aspects of the Criminal Code of the Republic of Kazakhstan, which entered into force on 1 January 2015. Compared to its predecessors, this Code is notable for offering substantial mitigation of punishment for juvenile offenders while tightening the penalties for crimes against minors. The chapter will be of interest to lawyers, experts in the field of child’s rights, students and general readers interested in the protection of children’s rights.

1 Introduction Territorially the ninth-largest country in the world, the Republic of Kazakhstan has a population just over 17 million people, of whom more than 4,700,000 are children and youth under 18.1 The concept of juvenile justice is relatively new in Kazakhstan, as historically the education of children has been based on national and family values. However, as a democratic legal state, Kazakhstan is actively implementing international standards and norms in the field of child rights.

1

1 Agency of the Republic of Kazakhstan on Statistics The Results of the National Population Census of the Republic of Kazakhstan in 2009 Analytical report.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004295056_047

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Juvenile Justice in Kazakhstan

The Convention on the rights of the child (crc) was ratified by Kazakhstan in 1994. Its first report on the realisation of the crc was submitted to the Committee on the Rights of the Child in 2001 and considered by the latter in 2003; the combined second and third reports were submitted in 2006 and reviewed in 2007.2 It is necessary to note that all functioning regulations in the Republic of Kazakhstan were adopted after the Soviet Union collapsed and Kazakhstan became independent in 1991. Among them are five main Codes that contain rules concerning juvenile justice: the Criminal code, the Criminal procedure code, the Criminal and executive code, the Civil code and the Civil procedure code. According to an assessment conducted by the Danish Centre for Human Rights, ‘the new codes are [of] a less repressive character in comparison with the old, which indicates their improvement’.3 Among the examples listed were the following: a new recognition of alternative punishments; a greater role for reports before sentencing; permission being given to a teacher or psychologist to attend the proceedings; and closer contact between young prisoners and their families and the community.4 A number of activities were undertaken in order to align juvenile justice in Kazakhstan with the crc, particularly its articles 37 and 40 (and General comment No. 10). The most important is that the Constitution of the Republic of Kazakhstan contains a provision that ‘marriage and the family, motherhood, fatherhood and childhood are under the protection of the state’.5 This marked the beginning of the development and publication of a range of new regulations to ensure the rights and freedoms of minors, given that juvenile justice did not exist as an independent institution in the former Soviet Union. Several of these regulations are particularly noteworthy: • the state youth policy of the Republic of Kazakhstan (28 August 1999); • standard provision ‘On the Commission for the protection of minors’, approved by decree of the Government of the Republic of Kazakhstan dated 11 June 2001 No. 789;

2 3 4 5

2 unicef Regional Office in the countries of cee/cis Assessment of Juvenile Justice Reform Achievements in the Republic of Kazakhstan (2009) 3. 3 unicef Regional Office in the countries of cee/cis Assessment of Juvenile Justice Reform Achievements in the Republic of Kazakhstan (2009) 8. 4 unicef Regional Office in the countries of cee/cis Assessment of Juvenile Justice Reform Achievements in the Republic of Kazakhstan (2009) 8. 5 The Constitution of the Republic of Kazakhstan of 1995.

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• Law of the Republic of Kazakhstan ‘On the rights of the child’ dated 8 August 2002; • Law of the Republic of Kazakhstan ‘On preventing and curbing smoking’ dated 10 July 2002; • Law of the Republic of Kazakhstan ‘On state youth policy in the Republic of Kazakhstan’ dated 7 July 2004; • Law of the Republic of Kazakhstan ‘On prevention of juvenile delinquency and the prevention of child neglect and homelessness’ dated July 2004; • Law of the Republic of Kazakhstan ‘On state families with children’ dated 28 June 2005; and, • the concept, or theory, of development of juvenile justice in 2009–2011 and other normative legal acts of the Republic of Kazakhstan. The international legal framework is the basis for the formulation of the concepts, the main elements of which are the Declaration of the Rights of the Child (1959), the crc (1989), the un Standard Minimum Rules relating to the Administration of Juvenile Justice (the Beijing Rules, 1995), un Guidelines for the Prevention of Juvenile Crime (the Riyadh guidelines, 1990), un Rules relating to the Protection of Juveniles Deprived of their Liberty (1990), the un Standard Minimum Rules in respect of Non-Custodial Measures (Tokyo Rules, 1990), and others. In relation to these legal instruments, the most pressing issues for reforming the regulatory and institutional framework of juvenile justice are reflected in the concept of legal policy of the Republic of Kazakhstan, approved by the decree of the President of the Republic of Kazakhstan dated 20 September 2002 No. 949. In this concept, or theory, the juvenile courts were identified for the first time as one of the focal areas for the development of the country’s judicial system. Two important research projects give further insight into the field of juvenile justice: Juvenile Justice in Kazakhstan: Assessment 2000 – a situational analysis prepared for unicef by the Danish Centre for Human Rights in 2000; and Development of a model of the rehabilitation center for minors by Sange research center, published in 2004. In the second study, a particular point of interest is the result of surveys of teenage prisoners, former teenage prisoners, and their parents.6 A significant positive experience is the work of the project ‘Juvenile Justice in Kazakhstan’, which was launched in 2003 at the initiative of the Ministry of Justice, the Supreme Court, the Prosecutor General’s office and the Ministry 6

6 Sange Research Center Development of a model rehabilitation center for minors (2004).

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of Internal Affairs in cooperation with the Almaty city’s and regional bar association, with the support of the Soros Foundation-Kazakhstan and the Open Society Justice Initiative.7 One of the objectives of the project is to use international standards and Kazakhstan legal mechanisms for the wider application of measures to adolescents not related to arrest (diversion) and to use noncustodial sentences as punishment. The project was staffed by specially designated and trained judges, prosecutors and police officers, from which staff a specialised group, consisting of 18 lawyers and 18 social workers, was created for the protection of minors. The project was implemented in two pilot areas, Auezovskiy (Almaty) and Karasai (Almaty region.). The results of the project were such that they raised the possibility of the introduction of a juvenile justice system in Kazakhstan. 3

Innovations in the New Juvenile Justice System

What innovations can be learned and applied from the specialist work described above? In the project a protection group consisting of social workers and specially selected lawyers was established. The social workers are students of the faculties of psychology, pedagogy and sociology of higher educational institutions of Almaty. Their role in the protection group is to stabilise the condition of detained adolescents, to calm them, to make contact, to gather all the necessary documents providing background information about the teenager, and to compose a social welfare history. This social welfare report is a valuable document for the lawyer, the investigator, the prosecutor, and the judge. It includes sections on personal characteristics as well as the situation in the family and school, and serves as an important means of protecting the interests of the minor. As a result, the teenager appears in court without feeling intimidated but aware of what is happening, and the court has the opportunity to take his or her individual circumstances into account. In addition, as agreed with the lawyer, and after communication with teenager, the social worker prepares ­social and psychological profiles on the basis of the case documents. As a rule, social workers work for free on a voluntary basis, because it is important for them to gain practical experience and consolidate their knowledge. These social workers are led by two professional psychologists included in the protection group. Furthermore, specialised lawyers are drawn from Almaty 7

7 Vitkovskaya S ‘A unique precedent, unusual even for the world practice. The Republic of Kazakhstan’ (2009) 16 Materials of the first All-Russian conference ‘Juvenile justice in the Russian Federation’ (Moscow, 10–12 June 2008) 97–103.

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city and regional colleges of advocates. They work as defenders of the juvenile on the basis of the schedule of duties from the moment of actual detention, in return for which they receive payment as for an assignment. So, one lawyer and one social worker are working with every teenager in the project.8 Thus, the establishment of the specialised protection group is the first and the most important indicator of a new, higher level of provision of legal assistance to minors in criminal proceedings. This is illustrated by, inter alia, the following: • The lawyers and the social workers were selected on a competitive basis, one which takes into account not only the level of professional knowledge but also personal interests in the work in this category of cases, particularly with children. • The lawyers and the social workers have been trained in children’s rights, including the international norms and standards in this area. • The lawyers and the social workers make up a unified team protecting minors. They hold weekly meetings to discuss cases, exchange views and experiences, formulate the best line of defence, and analyse the legislation and issues relating to its practical application. The project’s lawyers work on two kinds of defence cases for teenagers: ones in which they are paid for privately by the defendant’s parents and ones in which they are paid by the state. The quality of their work is the same in both situations and sufficiently high. A new and important advantage is that cases, rather being handled by individual lawyers, can benefit from teamwork. The implementation of such projects is one of the reasons for the decline of juvenile delinquency in Kazakhstan, which remains a pressing issue and requires constant work towards a solution. The number of juvenile offenders and the number of prisoners in Kazakhstan in recent years is reflected in Tables 46.1 and 46.2 below. However, the most effective measures for the implementation of the above projects were undertaken in 2007, when two experimental specialised juvenile courts were established initially in Astana and Almaty cities by the decree of the President of Kazakhstan. On the strength of the results, in 2012 such juvenile courts were created in all regions of Kazakhstan to have jurisdiction over criminal cases involving crimes committed by minors. In addition, in civil matters the competence of juvenile courts includes cases relating to: 8

8 Vitkovskaya S ‘A unique precedent, unusual even for the world practice. The Republic of Kazakhstan’ (2009) 16 Materials of the first All-Russian conference ‘Juvenile justice in the Russian Federation’ (Moscow, 10–12 June 2008) 97–103.

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Table 46.1 Number of persons committing crimes9

2012

2013

Total 98,176

Minors among them 5,879

Total 102,566

Minors among them 5,311

Table 46.2 Number of convicted persons10

2012

2013

Total 22,371

Minors among them 1,152

Total 24,677

Minors among them 1,006

• disputes about the determination of the child’s place of residence; • the deprivation (restriction) and the restoration of parental rights; • an adoption of the child, or the placement of minors in special education organisations or organisations with a special regime of detention; and • disputes regarding the custody and guardianship (parentage) of minors in accordance with the marriage and family legislation of the Republic of Kazakhstan.11 In addition, in terms of article 307 of the Criminal Procedure Code, the jurisdiction of juvenile courts includes criminal cases involving crimes committed by minors.12 A major achievement in improving the juvenile justice system was the development of the new Criminal Code and Criminal Procedure Code, which came into force on 1 January 2015. These codes are aimed at modernising the criminal justice system and bringing it into line with international standards. 9 10 11 12

9 10 11 12

Agency of the Republic of Kazakhstan on Statistics ‘Number of persons committing crimes’, available at http://www.stat.gov.kz (accessed 12 January 2015). Agency of the Republic of Kazakhstan on Statistics ‘Number of convicted persons’, available at http://www.stat.gov.kz (accessed 12 January 2015). Civil procedure code of the Republic of Kazakhstan 411-I of 1999 (with changes and additions on 29 December 2014). Criminal procedure code of the Republic of Kazakhstan 231-V of 2014.

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Sentencing under the New System

Regarding minors, what are the main changes introduced by the new codes? First, the new Penal Code legislation entails a two-tier system of criminal offences, which includes not only a crime but also the criminal offences to which are assigned a number of administrative offences against the personal rights of minors, public safety and order, as well as crimes of lesser gravity. Accordingly, the first-tier criminal offences mentioned above lead to the softer penalties than more serious crimes. The second tier pertains to serious crimes entailing severe penalties. The former Penal Code did not have such separation; as a result, the minor could be sentenced to the tougher penalties. The new code has substantially revised the previous code’s system of penalties in a shift towards alternative forms of punishment not connected with the isolation of the convict from society. Also, any abuse of children and adolescents is punished very strictly now. For example, persons convicted of a crime against the sexual inviolability of minors do not qualify for improvements in their situation such as exemption from criminal liability due to active repentance, probation, parole, commutation of sentence, and amnesty. This type of crime has been defined in the Criminal Code for the first time. In addition, for certain crimes against minors, there shall be a mandatory lifetime ban prohibiting offenders from occupying teaching positions or positions that involve working with minors. Previously, this punishment was optional and hence not mandatory. Prison terms have also increased for crimes against minors. So, in the case of rape and violent acts of a sexual nature concerning children, beyond what was provided in the former Code, namely, a term of imprisonment from 15 years to 20 years, an alternative punishment of life imprisonment has been added. Furthermore, there are increased terms of imprisonment for the commission of depraved actions without the use of violence against minors, which is now punishable by deprivation of liberty for a period from five to ten years. Previously, the punishment for this type of crime was more lenient and provided for the restriction of freedom for a period up to four years or imprisonment for a term of three up to five years. These tougher penalties are a necessary measure due to the rising number of cases of paedophilia in Kazakhstan in recent years. In addition, responsibility for crimes such as the involvement of minors in the commission of criminal offences and the commission of anti-social acts (for instance, vagrancy and begging) has been strengthened. Furthermore, the illegal transportation of a minor outside of the Republic of Kazakhstan was criminalised for the first time. Thus, the new Criminal Code shows a clear trend in which, on the one hand, it humanises the criminal punishment of minors and, on the other, imposes

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tougher penalties for crimes against minors. At the same time, in the case of first offenders, and for members of socially vulnerable groups (adolescents, women, the elderly), the law softens responsibility to the maximum extent possible. So, how indulgent will a new criminal law be to minors who have committed criminal offences? Despite the fact that the types of penalties imposed upon minors remain the same (for instance, deprivation of the right to engage in certain activities, fines, corrective work, community service, restriction of liberty and imprisonment), the upper limit of the imposition of a fine was reduced by half – from 500 mci in the old version to 250 in the new – and engagement in community service reduced from 160 to 150hours.13 Previously, a punishment of restriction of liberty had to fit within the lower and upper limits of such punishment, that is, from one year to two years. In the new Criminal Code the lower limit has been excluded; at the same time, juveniles may not be sentenced to forced labour under probationary supervision Also, for juvenile defendants who have committed crimes of minor and medium gravity unrelated to causes of death, imprisonment is not imposed; in the old law, by contrast, imprisonment was not imposed on minors who committed minor offences, nor on first-time offenders who committed crimes of moderate severity. Furthermore, arrest is not applied to minors. Measures taken by the state can help to reduce the size of the juvenile prison population. Under the existing criminal law, over the last four years every six out of seven minors is in temporary isolation from society.14 Analysis by the prosecutor’s office in Almaty of crimes committed by persons under the age of majority found a significant predominance of economically motivated offences. In general, juveniles committed theft and robbery involving objects like cell phones, car radios and other personal property. Crimes of this nature make up approximately 75–77 per cent of the total number of crime; most criminal activity is shown to be committed by minors of 15 to 17years of age.15 Conditions which account for minors’ crimes include lack of proper control by parents and teachers; single-parent families; weak preventative work on the 13 14 15

13 14

15

Criminal procedure code of the Republic of Kazakhstan 231-V of 2014. The Prosecutor’s office in Almaty ‘The prosecutor’s office has made reducing juvenile crime a priority’, available at http://almaty.prokuror.kz/rus/novosti/press-releasy/prokuraturadobilas-snizheniya-urovnya-podrostkovoy-prestupnosti (accessed 12 January 2015). The Prosecutor’s office in Almaty ‘The prosecutor’s office has made reducing juvenile crime a priority’, available at http://almaty.prokuror.kz/rus/novosti/press-releasy/prokuraturadobilas-snizheniya-urovnya-podrostkovoy-prestupnosti (accessed 12 January 2015).

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part of employees of educational institutions; underemployment of teenagers after they leave school; and inadequacies in the provision of technical and vocational education. But what should occur if the minor does come into contact with the criminal law? The most important thing is to ensure compliance with the provisions of articles 37 and 40 of the crc and provide free legal help to all children and ensure a fair trial. In terms of the Advocacy Act of the Republic of Kazakhstan, the state provides free defence counsel for every child on trial who cannot afford private legal counsel. Under existing law, during the review of cases concerning criminal offences committed by juveniles, the courts must abide by a number of stipulations. The main ones are: proceedings must be closed to the public; participation by legal representatives of a juvenile defendant and defence counsel is mandatory; the court cannot accept a refusal of the minor defendant of the right to legal counsel; and at the court hearing a teacher, a psychologist and, where necessary, a psychiatrist may participate, as well as representatives of guardianship authorities and of labour collectives in which the minor studied or worked. Furthermore, juvenile defendants, with the help of their legal representatives and counsel, shall be entitled at any stage of the trial to come to an agreement with the victim, including by way of mediation, as well as to conclude a procedural agreement with the prosecutor. In addition, the amended law aimed at the realisation of the right to consideration of cases involving minors, not only in the specialised juvenile court but also in the court of the place of residence of a minor, since, in practice, in a number of cases it is difficult to ensure the presence of a minor on trial due to the remoteness of a specialised court from the minor’s place of residence. 5 Conclusion In conclusion, it can be noted that, in the time since it attained independence and adopted its first national laws, Kazakhstan has come a long way in developing a juvenile justice system which is adequate in the light of international standards. Since the ratification of the crc more than 20years ago in 1994, the country has made significant progress, beginning with the opening in 2007 of the first two juvenile courts in Astana and Almaty and then in all regions in 2012, and currently ending with an initiative in 2016 by President Nazarbayev to establish an ombudsman for children. During this period Kazakhstan has also presented four reports on its child rights situation to the un Committee on the Rights of the Child, reports that demonstrate consistent compliance

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with the Committee’s recommendations, especially in the area of legislation. This is evidenced in particular by the new Penal Code of 2015, which has taken the protection of the rights of minors to an entirely new level. Kazakh lawyers, advocates, psychologists, social workers actively participate in a range of international conferences, seminars, trainings, schools, non-governmental organisations and the like in the field of the child’s rights. As a result, the quality of legal help provided to its children has improved. However, much remains to be done. In particular, it is necessary to pay attention to the following: • devoting state funds to address the problem of homeless children; • imposing harsher punishment for crimes against minors (including crimes perpetrated by the parents) to qualify these crimes as the gravest; • improving the system of correctional institutions for children; • creating a targeted programme of financial support for low-income families, large families and family-type alternative care settings; and • regulating the disciplinary measures that schools apply to their pupils. Bibliography Reports

Agency of the Republic of Kazakhstan on Statistics The Results of the National Population Census of the Republic of Kazakhstan in 2009 Analytical report, available at http://www.stat.gov.kz (accessed 12 January 2016). Flindt KP & Wammen DD Juvenile Justice in Kazakhstan: Assessment 2000 (2002) Copenhagen: Danish Centre for Human Rights UNICEF. UNICEF Assessment of Juvenile Justice Reform Achievements in the Republic of Kazakhstan (2009) UNICEF Regional Office for countries in central and eastern Europe (CEE)/Commonwealth of Independent States (CIS).

Legislation

Civil code of the Republic of Kazakhstan (Common part) of 1994 (with changes and additions on 29 December 2014). Civil code of the Republic of Kazakhstan (Special part) 409-I 1 of 1999 (with changes and additions on 29 December 2014). Civil procedure code of the Republic of Kazakhstan 411-I of 1999 (with changes and additions on 29 December 2014). Criminal and executive code of the Republic of Kazakhstan 234-V of 2014. Criminal code of the Republic of Kazakhstan 226-V of 2014. Criminal procedure code of the Republic of Kazakhstan 231-V of 2014.

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Constitutions

The Constitution of the Republic of Kazakhstan, 1995.

Miscellaneous

Agency of the Republic of Kazakhstan on Statistics ‘Number of convicted’, available at http://www.stat.gov.kz (accessed 12 January 2016). Agency of the Republic of Kazakhstan on Statistics ‘Number of persons committed crimes’, available at http://www.stat.gov.kz (accessed 12 January 2016). Agency of the Republic of Kazakhstan on Statistics ‘The main socio-economic indicators of the Republic of Kazakhstan’, available at http://www.stat.gov.kz (accessed 12 January 2016). Sange Research Center Development of a model rehabilitation center for minors (2004) Almaty. The Prosecutor’s office in Almaty ‘The prosecutor’s office has made reducing juvenile crime a priority’, available at http://almaty.prokuror.kz/rus/novosti/press-releasy/ prokuratura-dobilas-snizheniya-urovnya-podrostkovoy-prestupnosti (accessed 12 January 2016). Vitkovskaya S ‘A unique precedent, unusual even for the world practice. The Republic of Kazakhstan’ (2009) 16 Materials of the first all-Russian conference ‘Juvenile justice in the Russian Federation’ (Moscow, 10–12 June 2008) 97–103.