Article 1: Definition of the child
Article 1 defines children as all human beings below
18. The Convention takes no position on the life of an unborn child,
but says that all children have the rights set out in the Convention
until their 18th birthday.
Article 2:
Non-discrimination
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.
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.
Article 3:
Best interests of the child
In all actions
concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interests of the child shall be a
primary consideration.
States Parties
undertake to ensure the child such protection and care as is
necessary for his or her well-being, taking into account the rights
and duties of his or her parents, legal guardians, or other
individuals legally responsible for him or her, and, to this end,
shall take all appropriate legislative and administrative measures.
States Parties shall ensure that the
institutions, services and facilities responsible for the care or
protection of children shall conform with the standards established
by competent authorities, particularly in the areas of safety,
health, in the number and suitability of their staff, as well as
competent supervision
Article 4:
Implementation of rights
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.
When States ratify international treaties, they agree
to take measures to put them into practice. For children, this means
their government must make sure the country they live in and its
institutions provide them with the means to truly become rights
holders. This involves reforming laws, providing resources and
services, monitoring how children are affected and developing
institutions that promote children’s rights.
Article 5:
Parental guidance and the child's evolving capacities
States Parties shall respect the
responsibilities, rights and duties of parents or, where applicable,
the members of the extended family or community as provided for by
local custom, legal guardians or other persons legally responsible
for the child, to provide, in a manner consistent with the evolving
capacities of the child, appropriate direction and guidance in the
exercise by the child of the rights recognized in the present
Convention.
What does article 5 say?
Article 5 introduces the idea that children should be
able to exercise their rights as they acquire the competence to do
so. States should take this right into account when establishing
minimum ages on particular issues.
This article and the Convention as a whole places
parents centre stage in the child's development. However, parental
guidance must be geared towards supporting children to exercise their
rights and make their own decisions, respecting the extent to which
children can do this for themselves. Rights are not contingent upon a
person's ability to claim them, but extend to all.
Why is this important?
This article provides an additional way to age of
assessing children's maturity and capacity for making decisions. This
is particularly important for decisions that must be made on a case
by case such as consent to medical treatment.
Together with article 18, which asserts parents’
common responsibilities in raising their children, it provides a
basis for the relationship between the child, their parents and the
State.
What are the problems?
Children face a confusing array of minimum ages at
which they are deemed capable of making decisions for themselves -
from getting a job to accessing confidential medical advice, to
getting married.
The idea of minimum ages stems from adults'
presumption that children lack capacity and must therefore be
protected from the consequences of their decisions. Age restrictions
are one way of achieving this protection, but they ignore the fact
that children acquire maturity at different rates as well as a whole
range of other factors which influence children's maturity. In some
societies for example, children are already taking on
responsibilities such as caring for younger siblings or a parent who
uses drugs or alcohol that would be considered exceptional elsewhere;
in other places, children are overprotected to the point where they
are not allowed to play outside or say what they think or feel,
denying them the chance to grow and find out who they are.
Children certainly require protection and adult
guidance as a result of their young age and lack of experience. No
child should be exposed to violence or exploitation, and no child
should be forced to make a decision they don't want to make. However,
all children should be listened to irrespective of age, their views
should be taken seriously and their right to privacy and
confidentiality should be recognised. Involving children in what is
happening at home and in the community, taking their views into
account and allowing them to make mistakes promotes their
self-confidence and develops their maturity which in turn equips them
to avert risks.
Denying children their feelings and opinions tells
them they don't count, leaving them unable to protect themselves. The
right to confidential medical advice and counselling is particularly
pertinent, especially where children's safety or well-being is at
stake, such as for children experiencing violence or abuse at home
and those seeking sexual and reproductive health education or
services. In such cases, children should have the right to
confidential advice without parental consent at all ages. Even where
children lack capacity, any decision about their health or other area
of their lives must take their views into account as central to
determining their best interests.
Where children are overprotected, adults often do not
recognise how capable they are. Children often have to deal with
challenging situations - bullies at school or family break-ups, for
example.
What can States do about it?
The Convention challenges the idea that parents have
absolute rights over children, implying that parental responsibility
should be defined in law. It does not specifically define parental
responsibilities, but indicates that parents should provide
appropriate support for children to claim all their rights in the
Convention.
Article 5 seeks to encourage respect for children's
capacity to exercise their rights and involve them in decisions,
while balancing this with their relative lack of experience to
protect them from harm, such as violence and economic exploitation.
In practice, this means extending the fullest possible protection to
all children from harm, for example, involvement in armed conflict,
while encouraging and nurturing rights relating to children's
autonomy, such as freedom of expression, which allow them to grow and
participate in society. This balancing act has provoked controversy
in many areas of children's rights, such as the role of work and
their treatment in the justice system.
The concept of evolving capacities acknowledges that
children’s development is a journey and, together with the right to
be heard (article 12), that they are entitled to be involved in
decisions affecting them from the earliest possible age. The CRC
asserts the value of children's views and of giving them weight in
accordance with their age and maturity. This approach advocates
taking account of children's individual characteristics and
experiences, rejecting a strictly age-based approach. Some States
include this concept in legislation, particularly where decisions
about healthcare are concerned.
In many countries, age continues to be the main way
in which children's capacity is determined and children acquire
certain rights before the age of majority. The Committee encourages
States to ensure where minimum ages exist that they are consistent,
so the minimum age of admission to employment for example should not
be lower than the minimum age for leaving compulsory education. It
also insists that these are non-discriminatory, so apply to all
children equally
Article
6: Survival and development
States Parties recognize that every child has the
inherent right to life.
States Parties shall ensure to the maximum
extent possible the survival and development of the child.
States should manifestly not kill children (e.g.
through the death penalty, arbitrary executions, etc.). They should
also put measures in place to allow children to survive into
adulthood in conditions optimal for their development, including
through combating child mortality, and providing healthcare,
nutrition, sanitation and drinking water. They should protect
children from harmful traditional practices such as early marriage
and “honour killings”.
Article
7: Name and nationality
The child shall be registered immediately after
birth and shall have the right from birth to a name, the right to
acquire a nationality and, as far as possible, the right to know and
be cared for by his or her parents.
States Parties shall ensure the
implementation of these rights in accordance with their national law
and their obligations under the relevant international instruments
in this field, in particular where the child would otherwise be
stateless.
What does article 7 say?
Article 7 sets out children's right to be registered
immediately after birth, to a name, nationality and - as far as
possible - to know and be cared for by their parents. It requires
States Parties to fulfil these rights in accordance with other
national and international obligations, especially where children
would otherwise be stateless.
This article is closely connected to article
8
(preservation identity),
9
(separation from parents),
10
(family reunification) and
20
(children deprived of their family environment).
Why is this important?
Registering each child and making sure they have a
name and nationality is the first step to recognising each individual
as a human being with rights. These are core elements of all
individuals' identity. Without them, children remain invisible into
adulthood: they have no legal identity, no voice and are at greater
risk of other rights abuses. This article is not only crucial to
children, but also to States because, in order to develop laws and
policies that make sense, they need accurate information about the
number and situation of children in their country.
What are the problems?
Children need identity documents to access a host
of other rights, from education to health care and State benefits.
This makes unregistered children some of the most vulnerable in the
world. The fact that they have no record of who and how old they are
also means they are denied protections afforded to other children.
For instance, in countries where the death penalty is still permitted
for adults, but has - at least in law - been abolished for children,
they may be still executed in practice because they are unable to
prove their status as children (
Yemen).
The denial of education is another common obstacle, the consequences
of which can ripple into future generations (
Dominican
Republic). The absence of identity documents also makes children
more vulnerable to human trafficking and other forms of exploitation
because without legal status they are entirely at their abusers'
mercy (
Siliadin
v. France).
Even where children are registered, the type of
information recorded on their birth certificate can also violate
their rights and lead to discriminatory treatment. For example, in
some countries children's status as a 'foreigner' is recorded and
means they are denied rights enjoyed by other children.
The right to a name - another fundamental aspect of
children's identity - may be violated by their parents or the State.
In the
Indian
state of Maharashtra, for example, some girls are given the name
'Nakusha' which means 'unwanted' in the Marathi language because
parents believe that this will ensure their next child is a boy. Some
States are prescriptive about names, a practice that can discriminate
against minorities who have different naming traditions.
Morocco's
requirement that names are 'Moroccan in character', for example,
meant that for many years names from the Amazigh minority were
rejected by the Civil Registry, a situation which has now been
rectified by a government directive. In other countries States deny
children born out of wedlock the right to inherit their father's
surname.
The right to an identity and a name are intrinsically
linked to nationality, without which individuals have no legal status
(except where they are granted protection status as a refugee). And
birth registration does not necessarily equal acquisition of
nationality. In many countries, children inherit their parents' legal
status. This means that if a child's parents are not citizens
themselves, their children may be stateless. In such cases,
violations of their rights are already lined up against them before
they are born: pregnant women are denied adequate pre and postnatal
care, jeopardising their child's life as well as their own; in turn,
children do not receive immunisations and may experience barriers to
education. In some cases there is also an element of gender
discrimination to this issue where, for example, women married to a
foreign man are unable to pass on their nationality to their
children.
What should States do about it?
Birth registration
Article 7 requires children to be registered
immediately after birth. There should be no fee attached to birth
registration. This obligation should be set out in domestic law and
is the compulsory duty of parents and the administrative authorities.
In its recommendations to States, the Committee has recommended
various ways of achieving universal birth registration, including:
public awareness
campaigns;
placing mobile
registration units in remote areas;
establishing registration units in schools and
health clinics; and - promoting cooperation between health
professionals such as midwives and the authorities.
While birth registration documents are public, steps
should be taken to protect individuals' privacy to make sure the
information recorded does not lead to discrimination.
In addition, the absence of a birth certificate
should not be used to deny children other rights.
The right to a name
Children should be given a name from birth, not
recorded as numbers as has happened to some refugees, or in any other
way that degrades their dignity. The registration of a child's name
should not discriminate against people from minority cultures - this
can add to their marginalisation both in the present and later in
life, for instance, rendering them unable to vote.
States should also ensure provisions are made for
children to apply to change their name if they choose when they
acquire the ability to do so. Oversight mechanisms can also
prevent children from being given a name which would subject them to
ridicule.
The right to acquire a nationality
Nationality is generally granted either on the basis
of where a person is born or the nationality of their parents.
Article 7 requires that States ensure that a child acquires a
nationality in particular where the child would otherwise be
stateless. In practice this means that children born on the territory
of a State Party should be granted access to that State’s
nationality if the child does not acquire another nationality through
their parents. Article 7 also requires that States refer to other
international instruments to help children acquire a nationality.
This includes the
Convention
on the Reduction of Statelessness which similarly asserts that
children should be granted, automatically or by application,
citizenship in the country of birth if they would otherwise be
stateless. Citizenship laws should not discriminate on the basis of
gender and allow both mothers and fathers to pass down their
nationality to their child. Stateless children should also have the
right to acquire the nationality of the country they have lived in
and received protection from for a certain period of time to ensure
that they are lawful residents with full civil and political rights,
included in society, when they reach the age of majority.
Children's right to know and, as far
as possible, to be cared for by their parents
Children's right to know and be cared for by their
parents 'as far as possible' raises complicated questions, not least
because of the increasingly broad definition of parents, for example,
where children are conceived from in vitro fertilisation. This means
a child's birth parents are different from their genetic parents.
Some countries have laws to ensure parents' anonymity. In other
cases, a conflict may arise between a child's right to know and their
parents' right to anonymity, for instance, a mother may not wish to
reveal that her child was conceived through rape or if she would be
ostracised or otherwise at risk. In such instances, the
Hague
Convention on Protection of Children and Cooperation in Respect
of Inter-Country Adoption upholds the mother's right to privacy. But
it may still be possible to obtain permission from the mother to
inform the child at a suitable time. Elsewhere, States limit
children's right to know who their parents are if they are adopted,
born out of wedlock or conceived in vitro fertilisation.
However, in all cases, children should at minimum
have the right to non-identifying medical information about their
genetic parents. After all, the right to 'the highest attainable
standard of health' under
article
24, inevitably involves questions about family history. Denying
children relevant medical information could harm their standard of
care and unnecessarily put their health at risk. Where there are no
countervailing concerns about invading a genetic parent's protected
privacy, this information should be provided to children without
question. In addition, States should not only grant children access
to existing information about their origins, but should also be
encouraged to ensure that medical information is maintained on
gametes donors and persons placing children up for adoption.
Children's right to be cared for by their parents as
far as possible is also addressed in other articles - see 9, 18, 20.
There may be cases where this is not possible if their parents are
unable or unwilling to care for them. In some instances children may
themselves choose to leave home. In such cases, efforts should focus
on addressing the reasons they left in the first place. Returning
children as the default action could result in violations of their
rights.
Article 8: Preservation of identity
States Parties undertake to respect the right of
the child to preserve his or her identity, including nationality,
name and family relations as recognized by law without unlawful
interference.
Where a child is illegally deprived of some
or all of the elements of his or her identity, States Parties shall
provide appropriate assistance and protection, with a view to
speedily re-establishing his or her identity
What does article 8 say?
Article 8 protects children's right to preserve their
identity, including their nationality, name and family relations,
without unlawful interference. In addition, States are required
to help children regain any aspect of their identity that has been
taken away from them illegally.
Article 8 explicitly mentions just three aspects of
children's identity. But, read with the rest of the Convention,
this article protects all other aspects of children's identity, for
example, their sexual orientation and the right to their own culture.
Why is this important?
Article 8 was proposed by Argentina in the wake of
the 1970s and 80s' dictatorships, during which time babies born to
political prisoners were removed from their biological parents after
birth and their parents were forcibly disappeared. This article was
intended to prevent any similar situation from ever arising again,
and to help re-establish the identity of those children whose parents
had been disappeared. While the article is a consequence of a
specific historical period, it has many applications - from helping
children who have been displaced to re-establish contact with their
family to assisting children in State care to trace aspects of their
identity they are too young to remember. In essence, it protects the
personal characteristics, relationships and histories that make
children who they are.
What are the problems?
In Argentina and Uruguay in the 1970s and 80s,
thousands of children were kidnapped from political prisoners and
cast into adoption networks. Many of these individuals - who are now
adults - remain unaware of their biological family relations (
Gelman
v. Uruguay). Similar situations persist today in different
guises, in particular where corruption, lax record-keeping and
oversight are rife in State care institutions. In many of these
places, no record exists of children's name, age and location of
placement. This heightens children's vulnerability to trafficking and
other abuse, because if a child has no official identity, they have
no legal status and therefore no way of challenging abuse -
particularly when the State authorities are the perpetrators
(
Mexico).
Elsewhere, countries have come under fire because of insufficient
legislation to prevent and punish the disappearance of children or
the falsification of identity documents.
Children may also lose the thread of family
relationships which form part of their identity as a result of war,
disaster, adoption or divorce, among many other reasons. Where
tracing systems and record-keeping are inadequate, children may never
re-establish these connections. Children's right to preserve 'family
relations as recognised in law' means more than just knowing who
their parents are. But in the case of laws governing divorce or
adoption, children's wider family relationships, for instance, with
grandparents are often not taken into the equation and children lose
more than their relationship with one or both parents. In some
countries, parents may be blocked from changing their children's name
upon divorce or remarriage. In such cases, children may be obliged to
take on their father's name - they are given no choice in the matter.
Children may be deprived of an aspect of their
identity because of State policies to assimilate minority groups.
There are countless examples of countries banning the use of minority
names and language and forcibly removing children from their families
(
Roma,
Aboriginal
children). Even in the absence of an overt ban, the exclusion of
minority languages, religion and culture from the education system
can, in effect, break down distinct minority identities.
Other aspects of children's identity may be denied
because they are deemed unacceptable in the society in which they
live, for example their sexual orientation or children with gender
dysphoria.
What can States do about it?
The first step to helping children preserve their
identity is to make sure adequate laws are in place and that these
are enforced. These should ensure that records on children are
properly maintained and not falsified for any reason. This is
particularly important for children in institutions and children who
have been fostered or adopted for whom it is more difficult to find
out about their early childhood. Records should include details of
children's genealogy, date and place of birth, among other details.
Children should have access to these records and a
say in who else can access them (in line with CRC article 16 - the
right to privacy). Where there is a conflict of interests between
children's right to know their birth circumstances and their parents'
right to privacy, children should at the bare minimum be given
medical information about their genetic parents. Read more in article
7.
The
UN
Convention for the Protection of All Persons from Enforced
Disappearance obligates States to criminalise enforced
disappearances and, where they do occur, investigate and bring those
responsible to justice. Article 25 of this Convention requires States
to prevent and punish the wrongful removal of children from their
parents arising from enforced disappearance. This also requires
States to criminalise the falsification or concealment of documents
revealing children's true identity, and take measures to search for
and identify these children, returning them to their own family - in
line with CRC article 20. In addition, legal procedures should be in
place to review all placements and to annul adoptions originating
from an enforced disappearance. In all cases, children's best
interests should be a primary consideration, and their right to
express their views and have these taken into account according to
their age and maturity should be respected.
In the case of children who have been displaced or
evacuated as a result of war,
Additional
Protocol I to the Geneva Conventions requires that each child be
given an identity card to send to the Red Cross Central Tracing
Committee. The card should contain a photo and other identifying
information (article 73(3)). In addition, the UN High Commissioner
for Human Rights has issued some
Guiding
Principles on Internal Displacement (1998). These protect the
right of people who have been displaced to know the fate of their
missing relatives, establish their whereabouts, and receive
assistance from the relevant organisations (Principle 16). The
Principles also require States to issue internally displaced persons
with the documents they need to enjoy their legal rights, like
passports and birth certificates, especially where these have been
lost in the course of upheaval (Principle 20).
Other ways in which States are expected to help
children re-establish their identity include by dedicating resources
to measures like using the media to issue information about missing
children and reunite families; actively tracing relatives of
unaccompanied or refugee children; and amending nationality laws to
make sure children's best interests are considered in issues like
deportation of family reunification; and speeding up nationality and
asylum procedures. While aspects of children's identity are being
recovered, they should be cared for and told what is happening and
why to help them retain a sense of security and well-being.
Article 9:
Separation from parents
States Parties shall ensure that a child shall not be
separated from his or her parents against their will, except when
competent authorities subject to judicial review determine, in
accordance with applicable law and procedures, that such separation
is necessary for the best interests of the child. Such determination
may be necessary in a particular case such as one involving abuse or
neglect of the child by the parents, or one where the parents are
living separately and a decision must be made as to the child's place
of residence.
In any proceedings
pursuant to paragraph 1 of the present article, all interested
parties shall be given an opportunity to participate in the
proceedings and make their views known.
States Parties shall
respect the right of the child who is separated from one or both
parents to maintain personal relations and direct contact with both
parents on a regular basis, except if it is contrary to the child's
best interests.
Where such separation results from any action
initiated by a State Party, such as the detention, imprisonment,
exile, deportation or death (including death arising from any cause
while the person is in the custody of the State) of one or both
parents or of the child, that State Party shall, upon request,
provide the parents, the child or, if appropriate, another member of
the family with the essential information concerning the whereabouts
of the absent member(s) of the family unless the provision of the
information would be detrimental to the well-being of the child.
States Parties shall further ensure that the submission of such a
request shall of itself entail no adverse consequences for the
person(s) concerned.
Children should be able to live and have contact with
their parents unless certain factors indicate that the state should
intervene, such as abuse or because a child’s parents have
separated. This covers both potential long term separation (e.g. a
child being taken into care) and short term separation (e.g. if a
child spends some time in hospital). All decisions to separate
children from their parents must be made by the competent
authorities.
Article
10: Family reunification
In accordance with the obligation of States
Parties under article 9, paragraph 1, applications by a child or his
or her parents to enter or leave a State Party for the purpose of
family reunification shall be dealt with by States Parties in a
positive, humane and expeditious manner. States Parties shall further
ensure that the submission of such a request shall entail no adverse
consequences for the applicants and for the members of their family.
A child whose parents reside in different
States shall have the right to maintain on a regular basis, save in
exceptional circumstances personal relations and direct contacts
with both parents. Towards that end and in accordance with the
obligation of States Parties under article 9, paragraph 1, States
Parties shall respect the right of the child and his or her parents
to leave any country, including their own, and to enter their own
country. The right to leave any country shall be subject only to
such restrictions as are prescribed by law and which are necessary
to protect the national security, public order (ordre public),
public health or morals or the rights and freedoms of others and are
consistent with the other rights recognized in the present
Convention
Children should be able to maintain relationships
with their family when they are in separate countries. This is
particularly true in deportation cases where strict immigration rules
can lead to a parent being deported from a given country when the
child has a legal right to stay.
Article
11: Illicit transfer and non-return
States Parties shall take measures to combat the
illicit transfer and non-return of children abroad.
To this end, States Parties shall promote
the conclusion of bilateral or multilateral agreements or accession
to existing agreements.
Children are not only abducted by strangers for
financial or other motivations, they may also be wrongfully taken out
of their country by their parents or other relatives. If this
happens, every effort should be taken to make sure the child is found
and returned.
Article
12: The child's opinion
States Parties shall assure to the child who is
capable of forming his or her own views the right to express those
views freely in all matters affecting the child, the views of the
child being given due weight in accordance with the age and maturity
of the child.
For this purpose, the child shall in
particular be provided the opportunity to be heard in any judicial
and administrative proceedings affecting the child, either directly,
or through a representative or an appropriate body, in a manner
consistent with the procedural rules of national law
Children have the right to be heard in all matters
affecting them - this is a prerequisite for guaranteeing all their
other rights. In most societies, though, decisions are taken which
have an impact on children's lives - in court, at home and at school
and in politics - in which they are not consulted when adults would
be. The arguments used to deny children a voice today are the same as
those used to suppress women's views in the past (and present in some
cases).
Article
13: Freedom of expression
Text
The child shall have the right to freedom of
expression; this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or
through any other media of the child's choice.
The exercise of this right may be subject to
certain restrictions, but these shall only be such as are provided
by law and are necessary:
(a) For respect of the rights or
reputations of others; or
(b) For the protection of national security
or of public order (ordre public), or of public health or morals.
What does article 13 say?
Article 13 enshrines children's right to freedom of
expression. The first part of the article upholds children's right to
'seek, receive and impart information and ideas of all kinds', in a
range of formats and across borders. The second part limits
restrictions that can be placed on this right.
Article 13 is one of a group of CRC articles setting
out civil and political rights for children.
Article
14: Freedom of thought, conscience and religion
Text
States Parties
shall respect the right of the child to freedom of thought,
conscience and religion.
States Parties
shall respect the rights and duties of the parents and, when
applicable, legal guardians, to provide direction to the child in
the exercise of his or her right in a manner consistent with the
evolving capacities of the child.
Freedom to manifest one's religion or
beliefs may be subject only to such limitations as are prescribed by
law and are necessary to protect public safety, order, health or
morals, or the fundamental rights and freedoms of others.
People in many societies experience barriers to
enjoying this right, in particular to freedom of religion. But
children face additional barriers - their convictions are ultimately
constricted by their parents and other adults around them. In some
cases the imposition of parents' beliefs can lead to irreversible
harm to children. A number of child deaths have been recorded because
their parents, from various religious backgrounds, have rejected
life-saving medical interventions for their child on religious
grounds.
Article
15: Freedom of association
Text
States Parties
recognize the rights of the child to freedom of association and to
freedom of peaceful assembly.
No restrictions may be placed on the
exercise of these rights other than those imposed in conformity with
the law and which are necessary in a democratic society in the
interests of national security or public safety, public order (ordre
public), the protection of public health or morals or the protection
of the rights and freedoms of others.
Children's interest in building friendships and in
civic participation should be nurtured, not suppressed.
And yet, while many societies restrict everyone's
freedom to gather and assemble peacefully, others place particular
limits on this right for children. Curfews and minimum ages for
joining associations are some examples.
Article
16: Protection of privacy
Text
No child shall be
subjected to arbitrary or unlawful interference with his or her
privacy, family, home or correspondence, nor to unlawful attacks on
his or her honour and reputation.
The child has the right to the protection of
the law against such interference or attacks.
Children are particularly vulnerable to breaches of
their privacy because of the range of situations in which adults have
power over them. Some children are more likely to experience this
than others as a result of their living arrangements. Children living
in institutions for example may have their communications intercepted
and be subject to searches of their personal belongings. Children's
online lives add another dimension to this right.
Article
17: Access to appropriate information
Text
States Parties recognize the important function
performed by the mass media and shall ensure that the child has
access to information and material from a diversity of national and
international sources, especially those aimed at the promotion of his
or her social, spiritual and moral well-being and physical and mental
health. To this end, States Parties shall:
Encourage the
mass media to disseminate information and material of social and
cultural benefit to the child and in accordance with the spirit of
article 29;
Encourage
international cooperation in the production, exchange and
dissemination of such information and material from a diversity of
cultural, national and international sources;
Encourage the
production and dissemination of children's books;
Encourage the
mass media to have particular regard to the linguistic needs of the
child who belongs to a minority group or who is indigenous;
Encourage the development of appropriate
guidelines for the protection of the child from information and
material injurious to his or her well-being, bearing in mind the
provisions of articles 13 and 18.
Children need access to information from diverse
sources to become well rounded individuals, and governments should
encourage the mass media to help make this happen.
Children should also be protected from “harmful”
information. But some States have subverted this notion to justify
censorship. This not only firewalls children's rights and denies them
information they need to make safe and informed choices, but also
discriminates against others and stifles debate in society. The
"anti-gay propaganda” laws in Russia, Lithuania and elsewhere
are just one example of this.
Article
18: Parental responsibilities
Text
States Parties shall use their best efforts
to ensure recognition of the principle that both parents have common
responsibilities for the upbringing and development of the child.
Parents or, as the case may be, legal guardians, have the primary
responsibility for the upbringing and development of the child. The
best interests of the child will be their basic concern.
For the purpose of guaranteeing and
promoting the rights set forth in the present Convention, States
Parties shall render appropriate assistance to parents and legal
guardians in the performance of their child-rearing responsibilities
and shall ensure the development of institutions, facilities and
services for the care of children.
States Parties shall take all appropriate
measures to ensure that children of working parents have the right
to benefit from child-care services and facilities for which they
are eligible.
Parents play a central guiding role in a child's
life. But while parents have a duty to care and provide for their
children, they do not have a right to treat them however they see
fit. This duty requires support from the State - whether in the form
of child-care for parents in paid work or other provisions.
Article 19:
Protection from abuse and neglect
Text
States Parties shall take all appropriate
legislative, administrative, social and 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.
Such protective measures should, as
appropriate, include effective procedures for the establishment of
social programmes 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 described heretofore, and, as appropriate, for judicial
involvement.
What does article 19 say?
Article 19 addresses violence against children. It
emphasises that State Parties must have proper laws in place to
prohibit violence, but it also requires States to implement
administrative, social and educational measures to protect children.
All forms of violence, both physical and mental, fall under article
19.
Paragraph 2 outlines the protective measures that a
State Party is required to undertake, including the establishment of
social programmes and mechanisms for addressing cases of child
maltreatment.
In order for article 19 to be fulfilled, other
Convention rights must also be respected. These include, but are not
limited to, the right be heard (article 12), the right for children
in vulnerable situations to be specially protected (articles 20, 22
and 23), the right to health (article 24), the right to be protected
from dangerous work (article 32) and the right to be free from sexual
and other forms of exploitation (articles 34, 35 and 36). Article 37
(torture and ill treatment) is also particularly relevant.
Why is this right important?
Violence against children is widespread and extremely
damaging. The
UN
Study on Violence Against Children (UNVC), conducted in 2006,
found worrying incidences of violence in almost all countries of the
world. This included kicking, biting, choking and beating by parents
(UNVC, 2006: 52).
However, in many States laws are non-existent or
inadequate. For example, according to the
Global Initiative to End All Corporal Punishment of Children,
laws currently in force do not fully prohibit corporal punishment in
any setting in 26 States (figures from 2012), while In 41
States corporal punishment (caning, flogging, whipping) is lawful as
a sentence for crime under state, religious and/or traditional
systems of justice.
What are the problems?
Much violence is hidden within the private realm of
the family, or within the confines of schools, prisons, care homes
and other institutions. State Parties have a duty to prevent such
harms, to investigate cases of violence and hold those responsible to
account.
The hidden nature of much violence means that it can
be extremely difficult to discover and address. Cultural norms and
expectations are also implicated in the prevalence of violence
against children. For example, in many countries children are still
considered to be the property of parents, and corporal punishment is
often thought to be in the ‘best interests’ of children even
though all the
evidence suggests
otherwise.
The UN Study on Violence Against Children notes that
while there may be no outwardly visible sign of injury, “in all
instances...physical violence has a negative impact on a child’s
psychological health and development” (UNVC, 2006: 53). People
who were physically abused as children may have problems with
personal relationships and they may be more likely to treat their own
children abusively.
Read
more about forms of violence.
Non-physical violence has been the subject of much
less research. Non-physical punishments considered cruel and
degrading, and incompatible with the Convention on the Rights of the
Child, include, for example, punishment which belittles, humiliates,
denigrates, scapegoats, threatens, scares or ridicules the child.
Such punishments may be carried out in the family, or in institutions
such as schools. Psychological punishments that are
particularly cruel or severe may be considered psychological torture.
What should States do about it?
The UN Study on Violence against Children ended with
12 key recommendations. These included: Strengthen national and
local commitment and action; promote non-violent values and
awareness-raising; enhance the capacity of all who work with and for
children; provide recovery and social reintegration services; and
ensure participation of children.
The Committee on the Rights of the Child has issued a
General Comment on the subject of violence against children. Among
other points, the General Comment stipulates that a child
rights-based approach to protection from violence means understanding
children as rights-bearing individuals and not just ‘victims’.
This includes the realisation, therefore, that
children’s participation in decision-making is fundamental to
protection from violence.
The General Comment also notes that the principle of
the rule of law should apply fully to children as it does to adults,
and this includes the right to be free from all forms of corporal
punishment.
Article
20: Protection of children without parental care
Text
A child
temporarily or permanently deprived of his or her family
environment, or in whose own best interests cannot be allowed to
remain in that environment, shall be entitled to special protection
and assistance provided by the State.
States Parties
shall in accordance with their national laws ensure alternative care
for such a child.
Such care could include, inter alia, foster
placement, Kafala of Islamic law, adoption, or if necessary
placement in suitable institutions for the care of children. When
considering solutions, due regard shall be paid to the desirability
of continuity in a child's upbringing and to the child's ethnic,
religious, cultural and linguistic background.
The family is a very important social structure. All
types of families can raise a child, and there is no "one size
fits all" definition.
But sometimes - through war, persecution, health
needs, violence in the home, or for other reasons - children are
deprived of their family environment. In these situations, the State
must protect the child and ensure appropriate alternative care.
Article
21: Adoption
Text
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 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
intercountry adoption enjoys safeguards and standards equivalent to
those existing in the case of national adoption;
(d) Take all appropriate measures to ensure that,
in intercountry 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.
What does article 21 say?
Article 21 sets standards on adoption - where this is
a recognised practice - to ensure that children's interests are the
paramount consideration in all adoption decisions.
This requires that children's need for adoption is
determined in the right way; decided by the competent authority, with
the informed consent of all parties involved; carried out in the
right way with no 'improper financial gain'; and that inter-country
adoption is only considered when appropriate care cannot be found for
a child in their own country.
This article must be seen in the context of the CRC
as a whole: it is connected to identity, children's right to know
their origins, to be cared for by their parents and support and care
for children deprived of their family environment - all to be
achieved by ensuring children's best interests are the paramount
consideration.
Why is this important?
No one would dispute that children benefit from
growing up in a loving, stable and permanent home and family, and
that adoption can be one means of achieving this - provided it is
regulated by law and supervised by the State authorities. However,
adoption can also deny children their rights if the proper
regulations are not in place and their interests are not at the
forefront of decision making.
What are the problems?
In recent decades reports have brought to light the
extent of illegal and unethical practices surrounding adoption -
particularly in its international form - prompting questions about
why, how and when adoption should be an option.
The main controversy has arisen out of fierce global
'demand' to secure a child for a family, which now outweighs the
number of children eligible for adoption. In fact, very few 'orphans'
have no family; a recent
study
suggests that 98 per cent of children in institutions in Central and
Eastern Europe have at least one living parent, and that when
institutions are shut down, many of these children are accommodated
by members of their own family. In some countries children are placed
in institutions not because they are unwanted or have no family but
out of poverty. Elsewhere, children find themselves without a home by
virtue of social norms which shun teenage pregnancy and children born
out of wedlock. In
Ireland,
for instance, thousands of unmarried women and girls were forced to
give up their children for adoption and incarcerated in Catholic-run
laundries (the last of which shut in 1996). In
Uruguay,
unmarried girls under 18 still cannot be registered as their child's
parent (art. 235 of the Civil Code).
While the majority of prospective parents have a
well-meaning and legitimate desire to build a family, the scarcity of
adoptable babies and young children in their home country, coupled
with stringent and lengthy procedures at home, motivates them to take
their search to countries where regulations are lax. This has
resulted in children being wrenched from their birth parents by
deception and essentially sold by unscrupulous intermediaries. Before
legal reforms were passed in
Guatemala,
for example, children were stolen, kidnapped and trafficked for
adoption as a matter of routine with the collusion of notaries and
medical professionals who falsified DNA tests and legal documents. At
one point one in a hundred children was given up for international
adoption.
In spite of the rising demand for inter-country
adoption, this practice has been
in
decline globally since 2004, primarily because of the development
of stronger national systems, enabling most children to be cared for
in their home country. Many countries now limit inter-country
adoptions to children who tend to be overlooked nationally, such as
children over a certain age and children with disabilities. While
this signals progress, it has given rise to new issues: some
countries have concealed children's learning disabilities from their
adoptive parents who have then found themselves unable to cope,
leading to a distressing situation for the child.
While international adoption is the main arena for
such abuses, domestic adoption is not exempt. Domestic procedures can
violate children's rights in other ways, for example, when their
views are not taken into account or when they are denied access to
their files.
What can be done about it?
The most important consideration throughout the
adoption process - from identifying a child in need of a home,
to the procedure itself, through to monitoring the child's placement
- is the child's best interests (article 3), and this must be stated
in law.
The best interests principle requires that the
child's circumstances and identity are investigated by judicial and
professional authorities in a transparent manner. They are
responsible for determining the child's best interests and
ascertaining the informed consent of all those involved. Taking
the child's views into account is central to establishing their best
interests and is required under article 12. Some countries set a
minimum age above which a child's consent must be obtained, in others
children can veto their adoption.
Another fundamental principle of the Hague Convention
is the subsidiarity principle. This requires the investigation of
less intrusive solutions (family support systems, foster care, and
care by family members, for example) before the child's own family
ties are broken forever. Before starting any adoption procedure or
declaring the child eligible for adoption, all other solutions must
be considered. The child's individual situation should be reviewed
thoroughly to establish if there is an alternative form of parent
support or care.
In practice the best interests principle has often
been subverted where inter-country adoption is concerned, leading
many to impose their belief that children are better off with a
wealthy family outside their country of origin rather than remaining
with poor relatives at home.
The CRC is adamant that the State should take all
measures possible to support children to remain with their family
where this is deemed to be in their best interests (article 20.3),
and that parents have primary responsibility for raising their child
(article 18). Adoption must only be considered where parents are
unwilling to fulfil this responsibility or are ruled to be incapable
of doing so by judicial process. In this case, a child should be
placed with their wider family or found appropriate care nationally,
with inter-country adoption a last resort. The Hague Convention backs
this standpoint, also known as the principle of subsidiarity. A
recent
Council
of Europe report further exhorts States to send adoption
applications to other countries only in the numbers and at the time
requested to avoid fuelling attempts to separate children from their
families for financial gain. Particular vigilance is required in post
emergency situations by both sending and receiving countries as
tracking down identity documents and relatives is virtually
impossible and proper regulations are in disarray.
Regulation of adoption helps to ensure children are
matched with the right person on the basis of accurate information.
All prospective parents should be informed about the degree and need
of inter-country adoptions. They should also receive help in
preparing for children's questions about their origin. Articles 7 and
8 of the CRC promote children's right to be told of their adoption
and know their parent's identity if they wish. These articles were
conceived by children's rights advocates in Latin America in response
to the adoptions, often by military families, of children of parents
who 'disappeared' during the 1970s and 80s dictatorships. In this
vein, the Convention also asserts the importance of a child's
familiarity with their own culture and language where this is
different from that of their adoptive family and where they desire
this connection (article 30).
In cases of inter-country adoption, States should
ensure that children receive the nationality of their adoptive
parents to prevent statelessness.
Article
22: Refugee children
Text
States Parties
shall take appropriate measures to ensure that a child who is
seeking refugee status or who is considered a refugee in accordance
with applicable international or domestic law and procedures shall,
whether unaccompanied or accompanied by his or her parents or by any
other person, receive appropriate protection and humanitarian
assistance in the enjoyment of applicable rights set forth in the
present Convention and in other international human rights or
humanitarian instruments to which the said States are Parties.
For this purpose, States Parties shall
provide, as they consider appropriate, cooperation in any efforts by
the United Nations and other competent intergovernmental
organizations or non-governmental organizations co-operating with
the United Nations to protect and assist such a child and to trace
the parents or other members of the family of any refugee child in
order to obtain information necessary for reunification with his or
her family. In cases where no parents or other members of the family
can be found, the child shall be accorded the same protection as any
other child permanently or temporarily deprived of his or her family
environment for any reason, as set forth in the present Convention.
46% of the world’s 45 million refugees and
displaced people are children. Children who are refugees, internally
displaced or seeking asylum in another country are extremely
vulnerable, whether they are with their parents or alone. They have
experienced and witnessed things that no one ever should. And if they
survive and make it to a safe place they are often faced with harsh
immigration processes (including lengthy detention) and societies
that are hostile to them. For this reason, States should give these
children special protection.
Article
23: Children with disabilities
Text
States Parties
recognize that a mentally or physically disabled child should enjoy
a full and decent life, in conditions which ensure dignity, promote
self-reliance, and facilitate the child's active participation in
the community.
States Parties
recognize the right of the disabled child to special care and shall
encourage and ensure the extension, subject to available resources,
to the eligible child and those responsible for his or her care, of
assistance for which application is made and which is appropriate to
the child's condition and to the circumstances of the parents or
others caring for the child.
Recognizing the
special needs of a disabled child, assistance extended in accordance
with paragraph 2 of the present article shall be provided free of
charge, whenever possible, taking into account the financial
resources of the parents or others caring for the child, and shall
be designed to ensure that the disabled child has effective access
to and receives education, training, health care services,
rehabilitation services, preparation for employment and recreation
opportunities in a manner conducive to the child's achieving the
fullest possible social integration and individual development,
including his or her cultural and spiritual development.
States Parties shall promote, in the spirit
of international cooperation, the exchange of appropriate
information in the field of preventive health care and of medical,
psychological and functional treatment of disabled children,
including dissemination of and access to information concerning
methods of rehabilitation, education and vocational services, with
the aim of enabling States Parties to improve their capabilities and
skills and to widen their experience in these areas. In this regard,
particular account shall be taken of the needs of developing
countries.
Up to 200 million children globally have a
disability. It is not their impairments that are disabling as such;
but rather the attitudes and environments around them that are
disabling and stop them from accessing society. These children are at
disproportionate risk of other rights violations because of their
dependence on others and the barriers they face in reporting abuse.
Article 24: Health
and health services
Text
States Parties
recognize the right of the child to the enjoyment of the highest
attainable standard of health and to facilities for the treatment of
illness and rehabilitation of health. States Parties shall strive to
ensure that no child is deprived of his or her right of access to
such health care services.
States Parties
shall pursue full implementation of this right and, in particular,
shall take appropriate measures:
To diminish
infant and child mortality;
To ensure the
provision of necessary medical assistance and health care to all
children with emphasis on the development of primary health care;
To combat
disease and malnutrition including within the framework of primary
health care, through inter alia the application of readily
available technology and through the provision of adequate
nutritious foods and clean drinking water, taking into
consideration the dangers and risks of environmental pollution;
To ensure
appropriate pre-natal and post-natal health care for mothers;
To ensure that
all segments of society, in particular parents and children, are
informed, have access to education and are supported in the use of
basic knowledge of child health and nutrition, the advantages of
breast-feeding, hygiene and environmental sanitation and the
prevention of accidents;
To develop
preventive health care, guidance for parents and family planning
education and services.
States Parties
shall take all effective and appropriate measures with a view to
abolishing traditional practises prejudicial to the health of
children.
States Parties undertake to promote and
encourage international cooperation with a view to achieving
progressively the full realization of the right recognized in the
present article. In this regard, particular account shall be taken
of the needs of developing countries.
Children's right to health is so often just seen in
terms of malnourishment and vaccinations. But the right to health
means more than just surviving. It also includes the right to access
information about our health, respect for privacy and confidentiality
and the importance of informed consent. It must not be forgotten that
these principles also apply to children.
Article
25: Periodic review of placement
Text
States Parties recognize the right of a child who
has been placed by the competent authorities for the purposes of
care, protection or treatment of his or her physical or mental
health, to a periodic review of the treatment provided to the child
and all other circumstances relevant to his or her placement.
The purpose of placing children in families or
institutions is to make sure they receive appropriate care,
protection and treatment. But all too often it is the very people
entrusted with children's protection who perpetrate or collude in
their abuse. This means independent safeguards should be put in place
to protect children and ensure that their interests and views are the
most important consideration in all decisions about placements. The
need for such placements and the progress and circumstances of
individual children should be reviewed regularly by the proper
authorities.
Article
26: Social security
Text
States Parties
shall recognize for every child the right to benefit from social
security, including social insurance, and shall take the necessary
measures to achieve the full realization of this right in accordance
with their national law.
The benefits should, where appropriate, be
granted, taking into account the resources and the circumstances of
the child and persons having responsibility for the maintenance of
the child, as well as any other consideration relevant to an
application for benefits made by or on behalf of the child.
Children suffer disproportionately from poverty, just
as they are disproportionately affected by decisions about who can
access social security and how this is delivered. Children's
inability to influence economic policy is a direct consequence of
their low status in society, lack of income and exclusion from
democratic processes.
Article 27: Standard
of living
Text
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 conclusion
of such agreements, as well as the making of other appropriate
arrangements.
Children's development depends on their ability to
enjoy a decent standard of living. Of course this means they should
have adequate clothing, nutrition, and housing. But many other
elements are needed to secure children's wellbeing and inclusion in
society - not just the ability to cover basic needs. These
include having sufficient time to play, the opportunity to access the
internet and the enjoyment of a clean environment.
Text
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, in particular:
(a) Make primary
education compulsory and available free to all;
(b) Encourage
the development of different forms of secondary education,
including general and vocational education, make them available and
accessible to every child, and take appropriate measures such as
the introduction of free education and offering financial
assistance in case of need;
(c) Make higher
education accessible to all on the basis of capacity by every
appropriate means;
(d) Make
educational and vocational information and guidance available and
accessible to all children;
(e) Take
measures to encourage regular attendance at schools and the
reduction of drop-out rates.
States Parties
shall take all appropriate measures to ensure that school discipline
is administered in a manner consistent with the child's human
dignity and in conformity with the present Convention.
States Parties shall promote and encourage
international cooperation in matters relating to education, in
particular with a view to contributing to the elimination of
ignorance and illiteracy throughout the world and facilitating
access to scientific and technical knowledge and modern teaching
methods. In this regard, particular account shall be taken of the
needs of developing countries.
Education is the basis of children's development as
individuals and citizens. It also forms the foundation for democratic
societies and economic growth. All children should have access to a
school environment that respects their rights and inspires regular
attendance and an interest in learning.
Article
29: Aims of education
Text
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.
No part of the present article or article 28
shall be construed so as to interfere with the liberty of
individuals and bodies to establish and direct educational
institutions, subject always to the observance of the principles set
forth in paragraph 1 of the present article and to the requirements
that the education given in such institutions shall conform to such
minimum standards as may be laid down by the State.
A good quality education has to be about promoting
rights not only in what is taught but also in how it’s taught. This
recognises that children are individuals and education should be
directed towards each child’s personality, talents and abilities.
In other words, education should help children to become well rounded
people and develop respect for the people and world around them, as
well as teach them how to write and add up.
Article 30: Children
of minorites or of indigenous peoples
Text
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.
The rights of people belonging to minority groups are
violated throughout the world because cultural, religious and
linguistic practices that diverge from those of the majority remain
outside the control of the state. Childhood is the time when people
develop their own identity and form views about the world, so this is
often the time when states seek to neutralise minority practices, for
instance through school textbooks.
Article
31: Leisure, recreation and culture
Text
States Parties
recognize the right of the child to rest and leisure, to engage in
play and recreational activities appropriate to the age of the child
and to participate freely in cultural life and the arts.
States Parties shall respect and promote the
right of the child to participate fully in cultural and artistic
life and shall encourage the provision of appropriate and equal
opportunities for cultural, artistic, recreational and leisure
activity.
Children's right to play - often overlooked as a
luxury by adults - is essential for children to advance and
experiment with their capacities, develop social skills such as
compromise and negotiation, and form relationships with others. But
children's right to play has become sidelined because of budget cuts
which impede children's access to recreational facilities; surging
urban growth which swallows up green spaces; adults' fear of safety -
both of predators and traffic; and the ever-increasing demands of
work and study.
Article
32: Child labour
Text
States Parties
recognize the right of the child to be protected from economic
exploitation and from performing any work that is likely to be
hazardous or to interfere with the child's education, or to be
harmful to the child's health or physical, mental, spiritual, moral
or social development.
States Parties shall
take legislative, administrative, social and educational measures to
ensure the implementation of the present article. To this end, and
having regard to the relevant provisions of other international
instruments, States Parties shall in particular:
(a) Provide for a
minimum age or minimum ages for admissions to employment;
(b) Provide for
appropriate regulation of the hours and conditions of employment;
(c) Provide for appropriate penalties or other
sanctions to ensure the effective enforcement of the present
article.
Globally, some 215 million children work, not
including the millions of children working off the grid. The majority
of child workers are found in agriculture and domestic service, where
they are exposed to harmful chemicals, long hours and abuse. In many
countries, this kind of work is exempt from laws governing child
labour and occupational safety. This is not to say no child should
work: but if children have to - or want to - work, it should be safe,
fairly paid and should not interfere with their education.
Article
33: Drug abuse
Text
States Parties shall take all appropriate
measures, including legislative, administrative, social and
educational measures, to protect children from the illicit use of
narcotic drugs and psychotropic substances as defined in the relevant
international treaties, and to prevent the use of children in the
illicit production and trafficking of such substances.
Drug use among children poses a threat to their
survival, development and their health. However, in many places,
children who use drugs are dealt with in the criminal justice system
instead of getting the help they need. What's more, a refusal to
believe that children take drugs means that children are often unable
to access rehabilitation and harm reduction services. People say we
need to protect children, but the best protection is to give them the
honest and objective information and services they need to make good
choices.
Article
34: Sexual exploitation
Text
States Parties undertake to protect the child
from all forms of sexual exploitation and sexual abuse. For these
purposes, States Parties shall in particular take all appropriate
national, bilateral and multilateral measures to prevent:
(a) The
inducement or coercion of a child to engage in any unlawful sexual
activity;
(b) The
exploitative use of children in prostitution or other unlawful
sexual practises;
(c) The exploitative use of children in
pornographic performances and materials.
Sexual abuse and exploitation has severe and
long-term repercussions for children. Not only are their bodies in
physical danger, but abuse can leave permanent scars on children’s
mental health. Sexual violence against children happens much more
than people think. The Council of Europe says that one child in five
in Europe is thought to be a victim. In 70 to 85 per cent of cases,
children know their aggressors but few cases are ever reported to the
authorities.
Article
35: Sale, trafficking and abduction
Text
States Parties shall take all appropriate
national, bilateral and multilateral measures to prevent the
abduction of, the sale of or traffic in children for any purpose or
in any form.
What does article 35 say?
Article 35 requires all States to take appropriate
measures to prevent the abduction, sale or traffic of children. It is
a positive obligation, which means that States must take deliberate
steps to prevent such crimes from occurring, rather than only
reacting once such crimes have taken place.
The fulfilment of other Convention rights is
important for article 35, for example the right to be free from
violence (article 19), the right to free from exploitation in general
(articles 34 and 36) and the right to protection from dangerous work
(article 32).
Why is this right important?
Children may be trafficked for a number of different
reasons including labour exploitation, domestic work, sexual
exploitation, military conscription, marriage, illicit adoption,
sport (for example, camel jockeys), begging and for their organs.
Needless to say, trafficked children may experience extreme
hardships, violence, exploitation and/or sexual abuse.
"...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."
What are the problems?
States can sometimes confuse trafficking in
children with the sale of children, prohibiting the former but not
the latter. While these practices overlap, they are not the same. For
example, a child can be trafficked without being sold,
as trafficking requires only the physical transfer of a
child and needs neither a buyer nor a seller.
It is almost impossible to find reliable and accurate
statistics on children trafficked every year because it is a hidden
problem. At best, we can only estimate. The figure generally quoted
is one provided by the International Labour Organisation in 2002: 1.2
million per year (
Every
Child Counts, New Global estimate on Child Labour). However, this
figure is outdated and may underestimate the problem.
It is even more difficult to estimate the scale of
trafficking because of difficulties in definition across States, in
spite of Article 3 of the Palermo Protocol.
What should States do about it?
"It must be emphasised that migration is the
general phenomenon, and trafficking is only a mode of
migration. Over-emphasising trafficking and taking it out
of context (in relation to migration) is strategically
counter-productive in the fight for human rights because:
(a)trafficking puts migration in a crime control, crime
prevention context, rather than talking about migrants’ human
rights first, and then talking about trafficking in the
context of human rights; and (b) trafficking is being used
by governments as a vehicle to develop more restrictive approaches to
migration in general."
Stronger border controls under the pretext of
preventing trafficking can actually render children more reliant on
third parties to get them across the border, and therefore more
vulnerable to rights violations associated with both migration and
trafficking.
ECPAT argues
that States must adopt effective anti-trafficking legislation
that criminalises the traffickers rather than the victims. O’Connell
Davidson and Farrow (2007: 56) also list a number of ways in which
child rights agencies may address the problems of trafficking and
migration, including recognising that “migration per se is not
inherently bad for children”, and that the role of government is to
address conditions under which children are vulnerable to abuse and
exploitation, while also acknowledging children’s capacity for
migratory agency. The authors argue that organisations should not
talk about migration in ways that can be used to justify repressive
political measures and contribute to the vulnerability of children
and their relatives.
Article
36: Other forms of exploitation
Text
States Parties shall protect the child against
all other forms of exploitation prejudicial to any aspects of the
child's welfare.
Some forms of exploitation such as sexual abuse and
armed conflict are widely recognised and condemned. But children can
also be exploited in other ways: in political activities, by the
media, by researchers for medical or scientific experimentation, or
because they have talents, such as for sports or performance arts,
which may lead to them being deprived of other aspects of their
childhood.
Article
37: Torture and deprivation of liberty
Text
States Parties shall ensure that:
(a) No child shall be subjected to torture or
other cruel, inhuman or degrading treatment or punishment. Neither
capital punishment nor life imprisonment without possibility of
release shall be imposed for offences committed by persons below 18
years of age;
(b) No child shall be deprived of his or her
liberty unlawfully or arbitrarily. The arrest, detention or
imprisonment of a child 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;
(c) Every child deprived of liberty shall be
treated with humanity and respect for the inherent dignity of the
human person, and in a manner which takes into account the needs of
persons of his or her age. In particular every child deprived of
liberty shall be separated from adults unless it is considered in the
child's best interest not to do so and shall have the right to
maintain contact with his or her family through correspondence and
visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty
shall have the right to prompt access to legal and other appropriate
assistance, as well as the right to challenge the legality of the
deprivation of his or her liberty before a court or other competent,
independent and impartial authority, and to a prompt decision on any
such action.
What does article 37 say?
Article 37 mainly addresses issues relating to
children in conflict with the law (or ‘youth justice’). It refers
to a number of rights:
No child shall be subjected to torture, cruel,
inhuman or degrading treatment or punishment
No child should be unlawfully arrested or
detained.
Both capital punishment and life imprisonment
without the possibility of release are prohibited for offences
committed by persons below 18 years.
Any detained child must be separated from adults
unless it is considered in the child's best interests not to do so.
A child who is detained shall have legal and
other assistance as well as contact with the family.
Article 40, on the administration of juvenile
justice, is especially relevant for the fulfilment of article 37.
Why is this right important?
Article 37 contains a number of different, important
provisions that deserve individual mention.
The prohibition of torture is an absolute right
– this means that it cannot be derogated from, or excused
for, any reason. Torture, as opposed to abuse, is committed
by an agent of the state for a specific reason, and causes severe
pain or suffering.
Deprivation of liberty
The
Committee on the Rights of the Child has noted that detention
causes serious harm to children (see above link, p.5). Importantly,
Article 37 (b) explicitly provides that deprivation of liberty,
including arrest, detention and imprisonment, should be used only as
a measure of last resort and for the shortest appropriate period of
time, so that the child’s right to development is fully respected
and ensured.
The lawful arrest or detention of children can only
take place under certain circumstances. It must be proportionate and
only carried out in certain situations, including, for example,
detention following court conviction; arrest or detention for
failing to observe a court order/legal obligation; and arrest or
detention on remand (when due to come before a court) (see also the
International Covenant on Civil and Political Rights (article 9
onwards).
Capital punishment and life imprisonment without
the possibility of release
These sentences are prohibited for offences
committed by persons below 18 years. However, research suggests that
in at least seven States, child offenders can lawfully be sentenced
to death by lethal injection, hanging, shooting or stoning. In some
States, children as young as 10 can be sentenced to life
imprisonment. In at least 40 States, children can still be
sentenced to whipping, flogging, caning or amputation.
A detained child must be separated from adults
Much research has concluded that the placement of
children in adult prisons or jails compromises their basic safety,
well-being, and their future ability to remain free of crime and to
reintegrate.
A child who is detained shall have legal and
other assistance as well as contact with the family.
Every child deprived of liberty has the right to
maintain contact with his/her family through correspondence and
visits. The child should be placed in a facility that is as close as
possible to his/her family. The staff of the facility should promote
and facilitate frequent contacts of the child with the wider
community
Representation and participation
It is the responsibility of the authorities (e.g.
police, prosecutor, judge) to make sure that the child understands
each charge brought against him/her. The provision of this
information to the parents or legal guardians should not be an
alternative to communicating this information to the child.
The child must be guaranteed legal or other
appropriate assistance in the preparation and presentation of his/her
defence.
What are the problems?
Particular groups of children may be vulnerable to
having their Article 37 rights violated. For example, children in
institutional care in many countries are subject to violence from
staff and others responsible for their wellbeing. Children from
ethnic minorities and/or deprived backgrounds may be particularly
vulnerable to arrest and detention, or to disproportionate police
attention.
In general, social and cultural approaches to
children and childhood can create barriers to understanding the
rights of children in conflict with the law. If children are
understood as the property of parents or the State, or as persons
with ‘mini rights’, it becomes more difficult to appreciate that
they are entitled to, for example, access to legal representation or
rights to due process.
Impunity, and lack of proper investigation into
allegations of torture, or into lack of due process and regard to
child welfare in the juvenile justice process, all act as impediments
to the realisation of children’s rights.
What should States do about it?
The best interests of the child must be the primary
concern in any justice proceedings. In the case of allegations of
torture or other harmful treatment, the obligation to bring torturers
to justice in order to prevent impunity must be reconciled with the
right of child victims to psychological recovery. The Committee
on the Rights of the Child, in its Concluding Observations to States,
points out gaps in national legislation, and encourages governments
to ratify the
UN
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT) where they have failed to do
so.
Article
38: Armed conflicts
Text
States Parties
undertake to respect and to ensure respect for rules of
international humanitarian law applicable to them in armed conflicts
which are relevant to the child.
States Parties
shall take all feasible measures to ensure that persons who have not
attained the age of 15 years do not take a direct part in
hostilities.
States Parties
shall refrain from recruiting any person who has not attained the
age of 15 years into their armed forces. In recruiting among those
persons who have attained the age of 15 years but who have not
attained the age of 18 years, States Parties shall endeavour to give
priority to those who are oldest.
In accordance with their obligations under
international humanitarian law to protect the civilian population in
armed conflicts, States Parties shall take all feasible measures to
ensure protection and care of children who are affected by an armed
conflict.
In times of armed conflict, the rights of children
are violated in horrific ways. They are recruited and used as
soldiers and in supporting roles as cooks, spies, couriers and for
sexual purposes by armed groups and forces across the world. Children
are also used as instruments of war - in rhetoric and acts of
violence. Armed groups, for example routinely attack and occupy
schools and hospitals, prevent girls from going to school, and use
rape as a weapon of war.
Article
39: Rehabilitative care
Text
States Parties shall take all appropriate
measures to promote physical and psychological recovery and social
reintegration of a child victim of: any form of neglect,
exploitation, or abuse; torture or any other form of cruel, inhuman
or degrading treatment or punishment; or armed conflicts. Such
recovery and reintegration shall take place in an environment which
fosters the health, self-respect and dignity of the child.
Governments should put in place measures to
rehabilitate any child who has been a victim of any form of violence,
including neglect, abuse, torture and conflict, among others. These
measures include appropriate healthcare, social services and legal
assistance, among others. These should all be adapted to children’s
needs and take place in an environment that promotes their health,
dignity and self-respect.
Article 40:
Administration of juvenile justice
Text
States Parties
recognize the right of every child alleged as, accused of, or
recognized as having infringed the penal law to be treated in a
manner consistent with the promotion of the child's sense of dignity
and worth, which reinforces the child's respect for the human rights
and fundamental freedoms of others and which takes into
account the child's age and the desirability of promoting the
child's reintegration and the child's assuming a constructive role
in society.
To this end, and
having regard to the relevant provisions of international
instruments, States Parties shall, in particular, ensure that:
No child shall
be alleged as, be accused of, or recognized as having infringed the
penal law by reason of acts or omissions that were not prohibited
by national or international law at the time they were committed;
Every child
alleged as or accused of having infringed the penal law has at
least the following guarantees:
To be presumed
innocent until proven guilty according to law;
To be informed
promptly and directly of the charges against him or her, and, if
appropriate, through his or her parents or legal guardians, and to
have legal or other appropriate assistance in the preparation and
presentation of his or her defence;
To have the
matter determined without delay by a competent, independent and
impartial authority or judicial body in a fair hearing according
to law, in the presence of legal or other appropriate assistance
and, unless it is considered not to be in the best interest of the
child, in particular, taking into account his or her age or
situation, his or her parents or legal guardians;
Not to be
compelled to give testimony or to confess guilt; to examine or
have examined adverse witnesses and to obtain the participation
and examination of witnesses on his or her behalf under conditions
of equality;
If considered
to have infringed the penal law, to have this decision and any
measures imposed in consequence thereof reviewed by a higher
competent, independent and impartial authority or judicial body
according to law;
To have the
free assistance of an interpreter if the child cannot understand
or speak the language used;
To have his or
her privacy fully respected at all stages of the proceedings.
States Parties
shall seek to promote the establishment of laws, procedures,
authorities and institutions specifically applicable to children
alleged as, accused of, or recognized as having infringed the penal
law, and, in particular:
the
establishment of a minimum age below which children shall be
presumed not to have the capacity to infringe the penal law;
whenever
appropriate and desirable, measures for dealing with such children
without resorting to judicial proceedings, providing that human
rights and legal safeguards are fully respected.
A variety of dispositions, such as care,
guidance and supervision orders; counselling; probation; foster
care; education and vocational training programmes and other
alternatives to institutional care shall be available to ensure that
children are dealt with in a manner appropriate to their well-being
and proportionate both to their circumstances and the offence.
What does article 40 say?
Article 40 addresses rights relating to children in
conflict with the law (also known as juvenile justice). It includes
general human rights guarantees such as the right to be presumed
guilty until proven innocent (2(b)(i)), as well as child specific
provisions including:
The requirement that States establish a minimum
age of criminal capacity (3(a))
Advocating the use of measures to divert
children from criminal proceedings
The requirement that States provide specific
orders and measures relating to the care, guidance and supervision
of children, as well as counselling services. Alternatives to
institutional care should be available to ensure that children are
dealt with in a manner appropriate to their well-being and
proportionate both to their circumstances and the offence.
Article 40 requires that the treatment of children
within justice systems is consistent with their dignity and worth.
All professionals involved in the administration of juvenile justice
should be knowledgeable about child development, and what is
appropriate to their well-being.
Other Convention rights that are linked to the
fulfilment of article 40 include article 37, which also relates to
juvenile justice.
Why is this right important?
In almost all countries of the world, children are
criminalised for what may be minor offences. They are put in jail,
perhaps alongside adults, and/or may be saddled with a conviction
that restricts future opportunities in employment and elsewhere.
The
Committee on the Rights of the Child has noted that in many
countries children languish in pretrial detention for months or even
years. It has also argued that: “The use of deprivation of liberty
has very negative consequences for the child’s harmonious
development and seriously hampers his/her reintegration in society”
(see above link, p.5).
What are the problems?
A child rights approach to juvenile justice demands
that children are diverted from formal judicial processes. This does
not mean an abdication of responsibility. All people should be
responsible for crimes they commit. Rather, it requires that special
attention be paid to children’s level of development and evolving
capacities.
It is also important that juvenile justice systems
are not based on retribution. The promotion of re-integration, and
the provisions of innovative and effective community sanctions,
should be at the heart of youth justice policy.
We know that depriving children of their liberty
tends to increase the rate of re-offending. Locking up children can
only be justified if there are no other alternative ways to deal with
the immediate risks to others.
Moreover, it tends to be certain types of children
who get caught up in the criminal justice system. They may have been
socially marginalised for a variety of reasons; poverty, race and
minority status are often heavily implicated in criminal status.
What can States do about it?
The Committee on the Rights of the Child’s
General
Comment No. 10 (2007) on children’s rights in juvenile justice
makes a number of recommendations regarding appropriate measures to
be taken by States. In respect of Article 40, these relate to:
The prevention of juvenile delinquency
Interventions/diversion
Age and children in conflict with the law
The guarantees for a fair trial
Dispositions
Deprivation of liberty including pre-trial
detention and post-trial incarceration
The organisation of juvenile justice
Awareness and training
Article
41: Respect for existing standards
Text
Nothing in the present Convention shall affect
any provisions which are more conducive to the realization of the
rights of the child and which may be contained in:
(a) The law of a State Party; or
(b) International law in force for that State
The Convention sets out the bare minimum that
children should expect from their government. But if a country has
standards that are more advanced than the Convention, it should stick
to them, and always strive for higher standards for its children.
