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 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:

Article 2

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

Article 3

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.

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.

Article 6

1. States Parties recognize that every child has the inherent right to life.
2. States Parties shall ensure to the maximum extent possible the survival and development of the child.

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.

Article 12

1. 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.
2. 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.

Areas of participation (UNICEF, Save the Children UK, 2011)

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.

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.

• • • Voluntary
      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.

• • • Respectful
      Children’s views have to be treated with respect and children should be provided with opportunities to initiate ideas and activities.

• • • Relevant
      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
    • Inclusive
      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.

• • • 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.

• • • Accountable
      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):

1. 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.
2. Mental violence, which includes psychological maltreatment, mental abuse, verbal abuse and emotional abuse or neglect.
3. Physical violence, which includes all forms of corporal punishment and all other forms of torture, cruel, inhuman or degrading treatment or punishment.
4. 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.
5. 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.