Engaging migrant communities in the promotion of the rights of the child
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By the end of this module you will be able to:
- Recall the basic principles and provisions of the UN Convention on the Rights of the Child (CRC)
- Distinguish the four guiding principles of the CRC
Introduction to the CRC
What is the CRC?
The United Nations Convention on the Rights of the Child (CRC) is the most complete statement of children’s rights ever produced and is the most widely-ratified international human rights treaty in history. It was adopted by the United Nations in 1989 and entered into force on 1990.
The CRC applies to all children under the age of 18 (art. 1 CRC).
The Convention also contains a number of protocols – which are optional for countries – that add further rights for children. Those “Optional Protocols” are (UNICEF, 2021):
The Optional Protocol on the involvement of children in armed conflict
This Protocol requires governments to increase the minimum age that children can join the armed forces from 15 years and to ensure that members of their armed forces under the age of 18 do not take a direct part in armed conflict.
The Optional Protocol on the sale of children, child prostitution and child pornography
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The Optional Protocol on a communications procedure
This Protocol allows children to submit a complaint to the United Nations when their rights have been violated and their own country’s legal system was not able to offer a solution.
The Committee on the Rights of the Child
According to article 43 of the CRC, a Committee on the Rights of the Child is established. It is the body of 18 independent experts that monitors the implementation of the Convention on the Rights of the Child by the state parties. It also monitors the implementation of the two Optional Protocols to the Convention.
All states parties are obliged to submit regular reports to the Committee on how the rights are being implemented. The Committee examines each report and addresses its concerns and recommendations to the state party in the form of “concluding observations”.
The Committee is also able to consider individual complaints alleging violations of the Convention on the Rights of the Child and its first two optional protocols (OPAC and OPSC) by states parties to the third Optional Protocol as well as to carry out inquiries into allegations of grave or systematic violations of rights under the Convention and its two optional protocols.
The Committee also publishes its interpretation of the content of children’s rights provisions, known as general comments on thematic issues.
What makes the CRC special?
The Convention covers all aspects of a child’s life and sets out the civil, political, economic, social and cultural rights that all children everywhere are entitled to. It states that every child has rights, whatever their ethnicity, gender, religion, language, abilities or any other status.
It also explains how adults and governments must work together to make sure all children can enjoy all their rights.
The Convention must be seen as a whole: all the rights are linked and no right is more important than another. For example, the right to relax and play (Article 31) and the right to freedom of expression (Article 13) have equal importance as the right to be safe from violence (Article 19) and the right to education (Article 28).
Children’s rights are inextricably linked with the rights of parents and carers, whose important role in children’s lives is recognised throughout. However, Article 5 of the CRC introduces the concept of a child’s ‘evolving capacities’ as they grow older, to exercise rights on their own behalf. The Convention also provides children with a series of individual rights – such as the right to a name and nationality, the right to education, the right of access to health care services, the right to rest and leisure, the right to an adequate standard of living.
It is noted that there are four articles in the Convention, known as “General Principles”, that are seen as special because they help to interpret all the other articles and thus play a fundamental role in realising all the rights in the Convention. Those articles are:
- Non-discrimination (Article 2)
- The best interests of the child (Article 3)
- The right to life survival and development (Article 6)
- The right to be heard (Article 12)
The Convention finally provides rights for specific groups of children, such as disabled children, children who have been exploited or mistreated, refugee and migrant children, children in custody, and children in care.
There are four General Principles of the CRC:
1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.
According to article 2, states should:
– ensure that the rights of the children are applied without discrimination of any kind and
– take all appropriate measures to ensure that children are protected against all forms of discrimination
Although the Convention mentions only certain grounds of discrimination explicitly, it recognises the possibility of other grounds of discrimination from which children are entitled to protection.
Furthermore, the Committee on the Rights of the Child has specifically identified a number of other grounds of discrimination in its Concluding Observations, including discrimination on the basis of sexual orientation and against children affected by HIV and AIDS.
States must take proactive measures where necessary to guarantee the principle of non-discrimination, including law and policy reform, education and awareness raising, and monitoring, among others.
The non-discrimination principle does not mean that all children should be treated in the same way as each other or as adults, but a distinction should be made between discriminatory and differential treatment. The Committee has also said that special measures may sometimes be needed to promote the rights of certain groups of children. That would be a method to deal with indirect discrimination.
Direct and indirect discrimination
Direct discrimination is when a child or young person is treated differently (at school or in their community) because of one, or more, of his/ her characteristics.
Indirect discrimination is when a child or young person is treated in the same way as other pupils, but it has an adverse effect on that child because of who they are. So, for example, indirect discrimination is when a school policy is applied in the same way to everyone but, as a result, puts a disabled pupil at a disadvantage.
Types of discrimination
Forms of discrimination that are age-based or legitimised by (minor) age may be seen as the expression of an understanding of childhood under which children are seen as in principle inferior to adults, have a lower status or fewer competences. Age-based discrimination against children is also discussed under the term ‘adultism’, which is usually understood as the abuse of power adults have over children.
Racial and religious discrimination
Children can experience discrimination due to their ethnicity, as well as their faith, beliefs, culture or language – whether perceived or real.
This can increase children’s vulnerability by:
• being exposed to race or faith-based bullying that makes them feel different and that they do not belong
• leading them to focus on negative images, media stories etc., that devalue certain people and groups
• limiting their opportunities
As they develop, some children may explore different ways of being which do not conform to dominant forms of gender identity or sexual orientation. Thus they may identify themselves as lesbian, gay, bisexual, trans, non-binary and queer (LGBT+) during school years.
LGBT+ young people have reported experiencing discrimination and social isolation. All these can have a detrimental effect on their self-esteem, wellbeing and mental health over time.
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
This principle is related to the point about children being fully-fledged human beings, whose interests are important. Yet it goes even further: it says that they should be the primary consideration in the decision-making concerning them.
That may not necessarily mean doing exactly what the child wants on every occasion, because sometimes an outsider is a better judge of a child’s interests, particularly over the long term.
The best interests of the child (Committee on the Rights of the Children, 2013):
– Represent a complex concept that must be determined on a case-by-case basis
– Is flexible and adaptable. It should be adjusted and defined according to the specific situation of the child or children concerned, taking into consideration their personal context, situation and needs
– Through interpretation in line with the other provisions of the Convention, the authorities (e.g., legislator, judge, administrative, social or educational authority) will be able to clarify the concept and make concrete use thereof
– The flexibility of the concept of the child’s best interests allows it to be responsive to the situation of individual children and to evolve knowledge about child development. However, it may also leave room for manipulation (e.g., by state authorities, parents or professionals)
Elements to be taken into account when assessing the child’s best interests (Committee on the Rights of the Children, 2013)
Linking the child’s best interests with the right to be heard.
The child's views
The fact that the child is very young or in a vulnerable situation (e.g., has a disability, belongs to a minority group, is a migrant, etc.) does not deprive him or her of the right to express his or her views, nor reduces the weight given to the child’s views in determining his or her best interests.
The child's identity
Children are not a homogeneous group and therefore diversity must be taken into account when assessing their best interests. The identity of the child includes characteristics such as sex, sexual orientation, national origin, religion and beliefs, cultural identity, personality.
Regarding religious and cultural identity, for example, when considering a foster home or placement for a child, 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 (see art. 20, par. 3 of the UNCRC), and the decision-maker must take into consideration this specific context when assessing and determining the child’s best interests.
Preservation of the family environment
The right of the child to family life is protected under the Convention (art. 16 of the UNCRC). The term “family” must be interpreted in a broad sense to include biological, adoptive or foster parents or, where applicable, the members of the extended family or community as provided for by local custom (art. 5 of the UNCRC).
Preventing family separation and preserving family unity are important components of the child protection system, and are based on the right provided for in article 9, paragraph 1 of the UNCRC.
Given the gravity of the impact on the child of separation from his or her parents, such separation should only occur as a last resort measure, as when the child is in danger of experiencing imminent harm or when otherwise necessary; separation should not take place if less intrusive measures could protect the child.
Before resorting to separation, the state should provide support to the parents in assuming their parental responsibilities, and restore or enhance the family’s capacity to take care of the child, unless separation is necessary to protect the child. Economic reasons cannot be a justification for separating a child from his or her parents. Likewise, a child may not be separated from his or her parents on the grounds of a disability of either the child or his or her parents.
When separation becomes necessary, the decision-makers shall ensure that the child maintains the linkages and relations with his or her parents and family (siblings, relatives and persons with whom the child has had strong personal relationships) unless this is contrary to the child’s best interests.
Care, protection and safety of the child
When assessing and determining the best interests of a child or children in general, the obligation of the state to ensure the child such protection and care as is necessary for his or her wellbeing should be taken into consideration.
The terms “protection and care” must also be read in a broad sense, since their objective is not stated in limited or negative terms (such as “to protect the child from harm”), but rather in relation to the comprehensive ideal of ensuring the child’s “wellbeing” and development. Children’s wellbeing, in a broad sense includes their basic material, physical, educational, and emotional needs, as well as their needs for affection and safety. Children need to form an attachment to a caregiver at a very early age, and such attachment, if adequate, must be sustained over time in order to provide the child with a stable environment.
Assessment of the child’s best interests must also include consideration of the child’s safety, that is, the right of the child to protection against all forms of physical or mental violence, injury or abuse (see art. 19 of the UNCRC), sexual harassment, peer pressure, bullying, degrading treatment, etc., as well as protection against sexual, economic and other exploitation, drugs, labour, armed conflict, etc. (see art. 32-39 of the UNCRC).
Linking the child’s best interests with the right to be heard (art. 12)
Assessment of a child’s best interests must include respect for the child’s right to express his or her views freely and due weight given to said views in all matters affecting him or her.
Articles 3 and 12 have complementary roles: the first aims to realise the child’s best interests, and the second provides the methodology for hearing the views of the child or children and their inclusion in all matters affecting the child, including the assessment of his or her best interests. Article 3, paragraph 1, cannot be correctly applied if the requirements of article 12 are not met. Similarly, article 3, paragraph 1, reinforces the functionality of article 12, by facilitating the essential role of children in all decisions affecting their lives.
The evolving capacities of the child (art. 5) must be taken into consideration when the child’s best interests and right to be heard are at stake. States must ensure appropriate arrangements, including representation, when appropriate, for the assessment of their best interests; the same applies for children who are not able or willing to express a view.
- 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.
This principle is a great deal, broader than it first appears. It imposes obligations on states to pay attention not only to the physical development of children, but also to their mental, spiritual, moral, psychological and social development.
Governments are supposed to “create an environment” which is best suited to prepare each child for an individual life in a free society.
The right to survival and development is a prerequisite for enjoying other rights and is closely linked to poverty, exclusion and discrimination. Unfortunately, in some societies, less value is placed on children’s lives than those of adults and/or other children.
Survival is also an expression of gender-based discrimination. In many parts of the world, infanticide is practised against girls or the development of girls is given less priority compared to that of boys. Girls have less access to food, attention, education and play. They also have fewer opportunities to express themselves and may be taken less seriously, all of which can contribute to stunting their physical and social development.
- 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 and have a saying in all decisions affecting them, be that at home, in the community, at school or in individual legal and administrative matters (i.e., in the asylum-seeking procedures).
Participation respects children, along with adults, as citizens of their societies and recognises their unique and invaluable contribution to building the societies around them. Thus, it leads to multiple benefits including personal development, improved decision-making and outcomes, greater protection, and enhanced capacity for citizenship and democratic engagement.
In order for the right to participation to be exercised effectively, governments must introduce legislative, procedural and administrative measures to ensure that all children can be heard; take account of the views of all children, however young they are; create the opportunities for children to be able to express their views freely and without coercion or fear; allow children to be heard in proceedings either directly or through a representative and make sure that there are basic rules of fair proceedings so that children are represented properly.
Approaches to participation (UNICEF, Save the Children UK, 2011)
Participation can take many forms and engage children in different ways and at different levels. Each of the three following broad forms of participation represents a valid and meaningful approach in implementing article 12, but offers a different degree of opportunity for children to influence matters affecting them, and, accordingly, differing degrees of empowerment. However, they are each appropriate to different circumstances.
This is a process in which adults seek children’s views in order to build knowledge and understanding of their lives and experiences. It is characterised by being:
– adult initiated
– adult led and managed
– lacking any possibility for children to control outcomes
It therefore does not allow the transfer of decision-making processes to children themselves. There are many different mechanisms that can be used to consult with children, including online surveys, peer research, etc.
This provides a greater degree of partnership between adults and children, with the opportunity for active engagement at any stage of a decision, initiative, project or service. It can be characterised as:
- adult initiated
- involving partnership with children
- empowering children to influence or challenge both process and outcomes
- allowing for increasing levels of self-directed action by children over a period of time
Collaborative participation might include the involvement of children in designing and undertaking research, policy development, peer education and counselling, participation in conferences, or representation on boards or committees.
This is where children are afforded or claim the space and opportunity to initiate activities and advocate for themselves. It is characterised by:
- the issues of concern being identified by children themselves
- adults serving as facilitators rather than leaders
- children controlling the process. Children can initiate action as individuals, for example, in choosing a school, seeking medical advice, pressing for the realisation of their rights through the courts, or utilising complaints mechanisms.
Areas of participation (UNICEF, Save the Children UK, 2011)
In the family
Children should take decisions for themselves in accordance with their evolving capacities. This requires supporting and encouraging parents to listen to their children when making decisions that affect them and to respect their right to be involved in these decisions.
In alternative care
Children should be involved in all aspects of their care. They should be given information about all actions proposed, and they should have access to complaints mechanisms, independent inspectorate and independent monitoring body.
In health care
Children should be involved in decisions concerning their health care and treatment. They should have access to confidential health counselling and they should consent to treatment consistent with their evolving capacity.
Children should be involved in decisions concerning their education. They should be able to participate in democratic school councils and to participatory pedagogy where they can contribute to the development of education policy and legislation.
In play and recreation
Children should be able to exercise choice in their own play at home, in school, in hospitals, institutions and public spaces.
In the media
Children should be able to disseminate and share their perspectives and issues of concern to a wider audience.
In situations of violence
Children should receive information about the right to protection and where to report safely when they experience violence.
Recommended measures to facilitate the exercise of the right to participation (Committee of Ministers of the Council of Europe, 2012)
The obligations of the states are analysed in 3 goals: (1) protecting children’s right to participate, (2) promoting and informing children and young people about participation, and (3) creating spaces for participation.
Protecting the right to participate
- provide the greatest possible legal protection for children and young people’s right to participate,
- undertake periodic reviews of the extent to which children and young people’s opinions are heard and taken seriously,
- provide child-friendly means of making complaints,
- ensure safeguards are in place for children and young people who are especially vulnerable to rights violations, including those separated from their parents, from minority groups, with disabilities and those living in health-care and custodial institutions.
Promoting and informing children and young people about participation
- enhance the knowledge of professionals (such as teachers, lawyers, judges, police, social workers, community workers, psychologists, caregivers, etc.) on children’s and young people’s right to participate,
- provide children and young people with information appropriate to their age and circumstances -including in non-written forms and through social networking and other media- on their rights, and in particular their right to participate, the opportunities available to them to do so and where they can get support to take advantage of these opportunities.
Creating spaces for participation
- support the involvement of children and young people in associative and community life, intercultural learning, sport, leisure and the arts and work with children and young people to design easily accessible and informal methods of participation,
- increase the opportunities children and young people have to participate in public life and democratic bodies.
Children’s participation in administrative and judicial proceedings
Regarding the right of the children to be heard in administrative and judicial proceedings, the following steps should be taken:
- Preparing the children by providing them with accessible information about: their role in the hearing, including their rights at each stage, the support they can be given, how they can participate, and how their views will be considered; the practical arrangements such as when the hearing will take place, and where, how long it will last, who will be there, when and how decisions will be made
- Ensuring that the child can be heard effectively in the hearing by the introduction of rights which are properly implemented, and by the creation of child-friendly, safe and accessible authorities and courts
- Assessment of the capacity of the child by considering whether the child is able to form a view of the issues being addressed and, if so, what weight must be attached to those views. There should be a presumption in favour of the child’s capacity
- Providing feedback to the child so that she or he knows exactly what decisions have been made and why
- Mechanisms for the child to make a complaint, or seek a remedy if her or his right to be heard has not been properly implemented
Requirements of children’s participation (UNICEF, Save the Children UK, 2011)
Participation needs to be interpreted within the general principles derived from the CRC, therefore it needs to be:
- Transparent and informative
Children must be provided with full, accessible, diversity-sensitive and age-appropriate information about their right to express their views freely, about how this participation will take place, its scope, purpose and potential impact.
- Transparent and informative
Children should never be coerced into expressing views against their wishes and they should be informed that they can cease their involvement at any stage.
Children’s views have to be treated with respect and children should be provided with opportunities to initiate ideas and activities.
Opportunities must be available for children to express their views on issues of real relevance to their lives and enable them to draw on their knowledge, skills and abilities.
- Facilitated with child-friendly environments and working methods
Participation must avoid existing patterns of discrimination, and encourage opportunities for marginalised children.
- Supported by training
Adults need preparation, skills and support to facilitate children’s participation effectively, to provide them, for example, with skills in listening, working jointly with children and engaging children effectively in accordance with their evolving capacities.
- Supported by training
- Safe and sensitive to risk
In certain situations, expression of views may involve risks. Adults have a responsibility towards the children with whom they work and must take every precaution to minimise the risk to children of violence, exploitation or any other negative consequence of their participation.
- Safe and sensitive to risk
A commitment to follow-up and evaluation is essential.
Other rights included in the CRC
Article 9: Separation from parents
Children must not be separated from their parents against their will unless it is in their best interests (for example, if a parent is hurting or neglecting a child). Children whose parents have separated have the right to stay in contact with both parents, unless this could cause them harm.
Article 19: Protection from violence, abuse and neglect
Governments must do all they can to ensure that children are protected from all forms of violence, abuse, neglect and bad treatment by their parents or anyone else who looks after them.
Forms of violence (Committee on the Rights of the Child, 2011):
- Neglect, as the failure to meet children’s physical and psychological needs, protect them from danger, or obtain medical, birth registration or other services when those responsible for children’s care have the means, knowledge and access to services to do so. It includes physical neglect, emotional neglect, neglect of children’s physical or mental health, educational neglect and abandonment.
- Mental violence, which includes psychological maltreatment, mental abuse, verbal abuse and emotional abuse or neglect.
- Physical violence, which includes all forms of corporal punishment and all other forms of torture, cruel, inhuman or degrading treatment or punishment.
- Sexual abuse and exploitation which includes: (a) the inducement or coercion of a child to engage in any unlawful or psychologically harmful sexual activity; (b) the use of children in commercial sexual exploitation; (c) the use of children in audio or visual images of child sexual abuse; (d) child prostitution, sexual slavery, sexual exploitation in travel and tourism, trafficking (within and between countries) and sale of children for sexual purposes and forced marriage.
- Torture and inhuman or degrading treatment or punishment, which includes violence in all its forms against children in order to extract a confession; to extrajudicially punish children for unlawful or unwanted behaviours, or to force children to engage in activities against their will, typically applied by police and law-enforcement officers, staff of residential and other institutions and persons who have power over children, including non-State armed actors.
“All forms of physical or mental violence” means that there is no room for any level of legalised violence against children. Frequency, severity of harm and intent to harm are not prerequisites for the definitions of violence.
Article 22: Refugee children
If a child is seeking refuge or has refugee status, governments must provide them with appropriate protection and assistance to help them enjoy all the rights in the Convention. Governments must help refugee children who are separated from their parents to be reunited with them.
Article 28: Right to education
Every child has the right to an education. Primary education must be free and different forms of secondary education must be available to every child. Discipline in schools must respect children’s dignity and their rights. Richer countries must help poorer countries achieve this.
Article 34: Sexual exploitation
Governments must protect children from all forms of sexual abuse and exploitation.
Article 35: Abduction, sale and trafficking
Governments must protect children from being abducted, sold or moved illegally to a different place in or outside their country for the purpose of exploitation.
Article 39: Recovery from trauma and reintegration
Children who have experienced neglect, abuse, exploitation, torture or who are victims of war must receive special support to help them recover their health, dignity, self-respect and social life.
Article 41: Respect for higher national standards
If a country has laws and standards that go further than the present Convention, then the country must keep these laws.
Committee of Ministers of the Council of Europe (2012), Recommendation CM/Rec(2012)2 of the Committee of Ministers to member states on the participation of children and young people under the age of 18. Accessed on 07.10.2022 from: https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805cb0ca
Committee on the Rights of the Children (2013), General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, par. 1). Accessed on 07.10.2022 from: https://cypcs.org.uk/wpcypcs/wp-content/uploads/2021/02/General-Comment-14.pdf
Committee on the Rights of the Children (2011), General Comment No. 13 (2011). The right of the child to freedom from all forms of violence. Accessed on 07.10.2022 from: https://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.13_en.pdf
UNICEF (2021), How we protect children’s rights with the UN Convention on the Rights of the Child. Accessed on 27.09.2021 from: https://www.unicef.org.uk/what-we-do/un-convention-child-rights/
UNICEF, Save the Children UK (2011), Every Child’s Right to be heard. A resource guide on the UN Committee on the rights of the child. General Comment No. 12. Accessed on 07.10.2022 from: https://resourcecentre.savethechildren.net/node/5259/pdf/5259.pdf