The Convention on the Rights of the Child – What it says and how it’s implemented

Jim Lurie Regional Child Protection Research Unit NTNU Social Research www.samforsk.ntnu.no

IUC – June 2012

Milestones on the way to the CRC

        «The Century of the Child», Ellen Key (1903) Geneva Declaration on the Rights of the Child approved by League of Nations (1924) The Universal Declaration of Human Rights (1948) defines human rights for all people – motherhood and childhood are entitled to special care and assistance (art. 25) Declaration of the Rights of the Child approved by United Nations (1959) Poland proposes creation of more binding Convention on Children’s Rights (1978) UN Commission on Human Rights begins work on Convention on Children’s Rights as part of International Year of the Child (1979) Norway establishes first ombudsman for children (1981) CRC unanimously adopted by UN General Assembly November 1989 2 IUC – June 2012

What is the Convention?

  A guide to advocate for protection of children’s rights, help meet their basic needs, and expand their opportunities A legally binding international instrument incorporating  the full range of human rights - civil, cultural, economic, political and social rights A recognition that children have rights of their own, and need special protection  An agreed upon set of universal, non-negotiable standards and obligations 3

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Adoption & ratification of the CRC

     Unanimously adopted by UN General Assembly November 1989 Signed immediately by 61 countries January 1990 Entry into force September 1990 (after ratification by at least 20 countries) Ratified by 193 countries (all but USA & Somolia); ratification binds states legally to treaty Incorporation – some countries have given added authority to CRC  Gives priority to CRC in cases of disagreement with other national laws; IUC – June 2012

Structure of the Convention

     Preamble – explaining background & rationale

54 articles of 3 kinds

Substantive articles (art. 1-41) defining the rights of the child & obligations on states parties ratifying the convention Procedures for monitoring implementation (art. 42 45) – establishes the Committee on the Rights of the Child Provisions governing entry into force (art. 46-54) – (requires ratification by at least 20 countries) 5 IUC – June 2012

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The Preamble

       Childhood is entitled to special care and assistance The family, as the fundamental group of society, should be afforded necessary protection & assistance A child, for the full & harmonious development of his/her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding A child should be brought up in the spirit of the ideals proclaimed in the UN charter - peace, dignity, tolerance, freedom, equality & solidarity The child, by reason of his physical & mental immaturity, needs special safeguards, care & legal protection There are children living in exceptionally difficult conditions in all countries who need special consideration International cooperation is important for improving the living conditions of children, particularly in the developing countries

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General Principles

     The Committee on the Rights of the Child proposed four general principles to be used for monitoring and implementing the convention Freedom from discrimination (Art. 2) The best interests of the child (Art. 3) The right to life, survival & development (Art.6) The right to free expression of views (Art.12) 7 IUC – June 2012

Freedom from discrimination

 Article 2 (part 1) State Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

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The Best Interests of the Child

Article 3

1. In all actions concerning children, whether undertaken by public or social welfare institutions, courts of law, administrative authorities or legislative bodies the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well being, taking into account the rights and duties of his or her parents, legal guardians or other individuals legally responsible for him or her, and to this end shall take all appropriate legislative and administrative measures.

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Right to Life, Survival & Development

  

Article 6

1. States Parties recognize that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and development of the child. 10 IUC – June 2012

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Right to free expression of views

   

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 given due weight in accordance with the age and maturity of the child. 2. The child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Considered to be most important participation right in CRC IUC – June 2012

Categories of children's rights – "the 3 Ps"

     Traditional subdivision of human rights: civil, political, economic, social and cultural rights – CRC has all of these

The “3 Ps” – Provision, Protection and Participation

(Cantwell, 1992) – developed as slogan/pedagogical tool in cooperation with Unicef Provision access to goods & services (education, health care etc.) Protection from certain activities (violence, maltreatment, exploitation, etc.) Participation – right to act in certain circumstances – (art. 12 right to free expression of views) 12 IUC – June 2012

Controversial Participation

    Participation rights often seen as most controversial Art. 5 states that parental responsibility shall be exercised in a manner consistent with the “evolving capacities of the child” Children tend to need less protection and more participation as they grow older Protection & Participation rights sometimes conflict – the need to protect the child from making painful decisions can be used as argument for limiting participation 13 IUC – June 2012

Protection from Violence and Abuse

   CRC has many articles relevant for this course – but especially Article 19 1. States Parties shall take all appropriate legislative, administrative, social & educational measures to protect the child 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. 2. Protective measures should include effective procedures for the establishment of social programs to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention, and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment… 14 IUC – June 2012

Other relevant articles

15  Art. 20 – Protection of children without family  Art. 32 – Protection from economic exploitation & dangerous labor  Art. 33 – Protection from Drug Abuse  Art. 34 – Protection from sexual exploitation & sexual abuse  Art. 35 – Protection against traffic in children (slavery)  Art. 36 – Protection against other forms of exploitation

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Implementing the CRC

  Countries which have ratified the CRC are expected to take steps to implement it effectively Article 4 states: "States parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation. 16 IUC – June 2012

Implementing & Monitoring the CRC

     Articles 42-45 describe process for implementation and monitoring Art. 42: principles & provisions of the CRC should be made widely known to public Art. 43 :establishes the Committee on the Rights of the Child which is responsible for "examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention". Art. 44:Countries must report progress to the Committee at regular intervals Art. 45: allows UNICEF & other NGOs right to participate & provide expert advice to the Committee; Committee may also issue "general recommendations" on specific topics to clarify implementation issues and interpretation of the CRC 17 IUC – June 2012

The Committee on the Rights of the Child

      Originally 10 members, now expanded to 18 Independent experts who are “persons of high moral standing and recognized competence in the field of human rights” Elected for a 4 year term (can be reelected) Meets annually in Geneva; 3 sessions each year of 4 weeks Currently 5 members from Europe (Spain, Slovakia, Hungary, Norway and Switzerland) Organized within the Office of the UN High Commissioner for Human Rights in Geneva Switzerland (www2.ohchr.org) 18 IUC – June 2012

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Working Methods of the Committee

    The Committee has published working methods for its activities Countries must report 2 years after ratifying the Convention and every 5 years after that The Committee meets in Geneva and holds 3 sessions per year to consider reports from countries Reports are discussed in open & public meetings of the Committee, with an emphasis on "constructive dialogue" aimed at measuring "progress achieved and factors and difficulties encoutered" IUC – June 2012

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Working Methods (2)

     Committe issues "Concluding observations" following meeting with country These usually contain:  positive aspects/progress     factors & difficulties impeding implementation principal subjects for concern suggestions/recommendations additional information may be requested The Committee strongly encourages the participation of NGOs and national human rights institutions in the meetings of the Committee These may issue alternative reports to the Committee in response to the official report from the government Countries are expected to provide a detailed response in next report to the Committee including follow-up measures taken IUC – June 2012

Norway’s 4

th

Committee Periodic Report to the

   Norway’s 4 th periodic report to the Committee issued in 2008 Comprehensive report (175 pages) Includes several measures designed to provide better protection to children exposed to violence and abuse (Art. 19)       Change in penal code aimed at reducing domestic violence Right to compensation for children who have been witnesses to violence Interdepartmental strategy plan against sexual and physical abuse of children Funding for research on “Children who live with violence in the family” Campaign to identify & follow-up children with alcohol & drug abusing parents and/or parents who are mentally ill Action plan to combat domestic violence 21 IUC – June 2012

Alternative Reports to the Committee

  Alternative reports sent by various organizations including the Norwegian Ombudsman for Children & the Norwegian Forum for the CRC Ombudsman's report highlighted a number of implementation problems including:  Practical implementation, gap between regulations & reality   Children exposed to violence, neglect & abuse, with psychological problems, and with disabilities Late professional intervention   Poor interagency cooperation Inadequate child welfare services & inadequate follow-up of violence & abuse 22 IUC – June 2012

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Children's Hearing

     A special children's hearing was held in Oslo in October 2009 Arranged by Norwegian Ombudsman for Children, Save the Children Norway and the Norwegian children and youth council Children met with a member of the Committee on the Rights of the Child 59 Norwegian children/young people aged 11-18 years Discussed conditions for children in Norway and their views on children's rights  Need for better schools & measures against bullying   The right to participate in leisure activities Ending violence & abuse against children    Need for improved child welfare services Children's right to be heard Better services for minors seeking asylum IUC – June 2012

Committee’s response to Norway’s 4

th

report

   Committee issued its "concluding observations" to Norway’s 4 th report in January 2010 15 pages long, focuses mainly on areas of concern and recommendations Committee's comments/concerns on abuse and neglect   Child welfare services in some areas lack the resources or competence to identify & support children who are exposed to violence Existing helpline is not well known to children   Competence is limited to dealing with violence in families of different cultures and to communicating advice for violence-free education Recommendation: "Norway should ensure that adequate and appropriate assistance is provided to children and their families in all areas of the country, taking into account respect for other cultures and that children have information about the helpline and where to find effective assistance". 24 IUC – June 2012

General Comments

    Committee can also issue General Comments based on specific articles, provisions and themes Purpose: "to assist the States parties in fulfilling their obligations under the CRC and to stimulate the international organizations and the specialized agencies concerned in achieving progressively and effectively the full realization of the rights recognized in the CRC" (from Working Methods of Committee) Has issued 13 General Comments between 2001 and 2011 Nr. 13 from 2011 is especially relevant for this course – "the right of the child to freedom from all forms of violence" 25 IUC – June 2012

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Previous General Comments

 Other general comments have addressed:             Education Independent human rights institutions HIV/AIDS Adolescent health General measures of implementation Treatment of unaccompanied and separated children outside their country of origin Early childhood Protection from various forms of punishment Children with disabilities Juvenile justice Indigenous children Right of the child to be heard IUC – June 2012

Rationale for General Comment nr 13

"The Committee issues the present general comment on article 19 of the CRC, since the extent and intensity of violence exerted on children is alarming. Measures to end violence must be massively strengthened and expanded in order to effectively put an end to these practices which jeopardize children's development and societies' potential non-violent solutions for conflict resolution".

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Objectives of General Comment 13

   To guide States parties in understanding their obligations under art. 19 of the CRC To outline the legislative, judicial, administrative, social and educational measures that States parties must take To overcome isolated, fragmented and reactive initiatives to address child caregiving and protection which have had limited impact on the prevention and elimination of all forms of violence 28 IUC – June 2012

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Objectives (2)

   To promote a holistic approach to implementing art. 19 based on the CRC's overall perspective on securing children's rights to survival, dignity, well-being, health, development, participation and non-discrimination – the fulfilment of which are threatened by violence To provide States parties and other stakeholders with a basis on which to develop a coordinating framework for eliminating violence through comprehensive child rights based caregiving and protection measures To highlight the need for all States parties to move quickly to fulfill their obligations under art. 19 IUC – June 2012

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Questions about implementing the CRC

     How seriously do we take children in our societies?

How much progress has been made so far & how much more might be achieved?

To what extent have the commitments made by States to the CRC led to the adoption of concrete measures to improve the rights of children?

To what extent have the measures taken had a real impact on the lives of children?

To what extent has the holistic approach of the CRC informed its process of implementation? (Bellamy & Pais, 2007) IUC – June 2012

Some implementation results

       Increased profile for children’s rights at different levels Extensive changes in national laws and policies Establishment of ombudsman for children Governmental mechanisms to coordinate activities across sectors and regions More & better data on children Education on children’s rights in schools and for professionals New international and regional inititiatives (Pais 2007) 31 IUC – June 2012

Areas where CRC has been most effective

           Incorporating human rights principles into legislation Establishing interdepartmental & multidisciplinary bodies Developing national agendas for children Widening partnerships for children Promoting ombudspersons for children Assessing the impact of measures on children Restructuring budgetary allocations Targeting child survival and development Implementing the principle of non-discrimination Listening to children's voices Developing justice systems for children (Unicef) 32 IUC – June 2012

What is an Optional Protocol?

    Legal instrument that complements a treaty On any topic relevant to treaty to further address something in treaty or new & emerging concern Not automatically binding on states that have ratified original treaty, must ratify protocol independently 2 Optional Protocols to CRC are in effect on involvement of children in armed conflict & the sale of children, child prostitution and child pornography 33 IUC – June 2012

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New OP on a communications procedure

      A new Optional Protocol on a communications procedure adopted by UN General Assembly in December 2011 Signed by 22 countries (preliminary endorsement, not legally binding) Not ratified (or acceded to) yet by any countries Enters into force 3 months after ratification/accession by at least 10 countries A coalition of over 80 international & national NGOs has worked for this since 2006 CRC was only international human rights treaty without an individual complaints mechanism IUC – June 2012

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How does the complaints mechanism work?

    The new protocol will enable children, or their representatives, claiming that their rights have been violated to bring a complaint to the Committee on Children's Rights, provided that their country has ratified this OP Complaints may be brought by or on behalf of an individual child or group of individuals All domestic remedies have been exhausted (unless these are unreasonably prolonged or unlikely to bring effective relief) Collective complaints (such as those submitted by advocacy organizations) are not permitted (various NGOs including Save the Children tried to achieve this) IUC – June 2012

Complaints procedure (2)

 The Committee shall be guided by the principle of the best interests of the child in implementing this protocol  Individuals or groups of individuals must consent to the submission of a complaint  The Committee shall conduct an inquiry if it receives reliable information indicating grave or systematic violations by a State party of rights set forth in the CRC or OPs ratified by that country 36 IUC – June 2012

Key Children’s Rights Organizations

     CRIN (Child Rights Information Network) www.crin.org

UNICEF (The UN Children’s Fund) www.unicef.org

Save the Children www.savethechildren.org

ENOC (European Network of Ombudspersons for Children) www.crin.org/enoc NGO Group for the Convention on the Rights of the Child www.childrightsnet.org

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Questions for discussion

      How well known is the CRC in your country?

How well are children’s rights protected in your country?

What role has the CRC played in advancing children’s rights in your country?

What are some of the most important advances in children’s rights in your country?

What are some of the biggest obstacles to effective implementation of children’s rights in your country?

Does your country have an ombudsman for children or similar organization? What is its role?

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The Ombudsman for Children in Norway

 First in the world in 1981  Independent and politically neutral organization  Aim is to promote the interests of the child, and be attentive to childhood and upbringing of Norwegian children.

 To safeguard children’s rights according to the CRC  Suggest measures to secure children’s rights  Secure information about children and their rights 39

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