Building a Europe for and with children

Child participation and access to the United Nations Convention on the Rights of the Child


Professor Yanghee Lee
 Sungkyunkwan University
Chairperson of the UN Committee on the Rights of the Child

 

I. Introduction

On behalf of the Committee on the Rights of the Child, I would like to take this opportunity to thank the Council of Europe for holding this Conference on International Justice for Children. Unfortunately, I could not be here yesterday because as you all know, our Committee just started our session yesterday. The scheduling has also limited participation of other members of the Committee.

Let me first start by presenting a very brief overview of the UN Convention on the Rights of the Child, before discussing about child participation and accessibility to the reporting process.

II. Overview of the CRC

The Convention on the Rights of the Child was adopted and ratified by the UN General Assembly on 20 November1989 and entered into force on September 2, 1990. The Convention on the Rights of the Child (hereafter referred to as CRC) is the first binding instrument in international law to deal with the rights of children. It provides the highest level of international standards and guidelines for regional and national implementation.

The Convention on the Rights of the Child is the most comprehensive treaty that contains 42 detailed provisions enshrining the rights of children in all areas of their lives. It is the first international instrument that covers the economic, social, cultural, civil and political rights, including special protection measures for all persons under the age of 18 years of age. The CRC is the only international human rights treaty that has almost universal ratification.

To date, still with the exception of the United States of America and Somalia, there are 193 ratifications. The convention has been supplemented by two Optional Protocols. The Optional Protocol on the involvement of children in armed conflict, raising the minimum age for involvement in armed conflict to 18, entered into force on 12 February 2002. The Optional Protocol on the sale of children, child prostitution and child pornography strengthens the Convention’s protection in these areas and entered into force on 18 January 2002.

Key features of the convention

• Definition of the child: everyone below the age of 18 years unless under the law applicable to the child, majority is attained earlier;

• Non-discrimination;

• Best interest of the child;

• Right to Life: appropriate health care, access to health care, hygiene, nutrition, environmental sanitation, and the prevention of accidents;

• Right to Development: appropriate child care, education, play, cultural activities;

• Right to Protection: From economic, sexual exploitation, torture, etc.;

• Right to Participation: freedom to express, access to information, assemble;

• Training and dissemination of CRC.

III. Child participation

Key issues in participation

Child participation is perhaps a concept that is the most misunderstood and a right that is the most difficult to ensure. The reasons for this are many, and are strongly rooted in the traditional view of children in almost all societies. Let me just briefly mention some of the reasons. Childhood was not recognised as a distinct phase of life before the seventeenth century. Childhood was regarded as a period to pass through as quickly as possible. For a very long time, there existed the implicit binarism of the psychological model which viewed children as ‘immature, irrational, incompetent, asocial, and acultural’. On the other hand, adults were viewed as ‘mature, rational, competent, social, and autonomous’. Ironically, despite this type of a view, children had always contributed to the economic development of the family and ultimately to the society as a whole. For a very long time (which I am afraid that this still exists to a certain extent in all societies) children were viewed as to be the possession of the parents. Parents in particular, and adults in general, believed that since children are immature, that they were their “property”, that they had to look out for them. Meaning that, it was the adults who had the power and duty to make all the decisions, because it was in best interests of the children.

This belief and tradition has made it very difficult for child-rights advocates to convince the society that it is actually in the best interest of the society when children are included. When children are allowed to take an active part in their social lives, including taking part in decisions that affect them, not only the child benefits, but it is the society that benefits in the longrun. The ultimate goal of a democratic society is to have as many well-informed citizens as possible. In all societies, children are considered as the leaders of the future. However here is where the problem exists. The hidden assumption is that when children eventually become adults, then they can become leaders. How far have we come from the traditional view of the child as being incompetent and immature? If children are not allowed to actively participate in all aspects of their lives, it can not be guaranteed that once they pass their 18th birthday, they will all of a sudden become ‘competent and mature”.

According to Roger Hart’s definition, “participation is the process of sharing decisions which affect ones life and the life of the community in which one lives. It is the means by which democracy is built and it is a standard against which democracies should be measured”. What is central to this definition is not just the frequency of tokenistic, show-case like participation, but one that has a clear purpose and an end result. The purpose should be to ensure children to express their views in matters that affect them and then to have their views taken seriously by reflecting them in programmes and policies that affect children. The CRC has many provisions that serve as the legal standard and guidelines for participation.

Although the convention does not explicitly have the “right to participate” as an article, it does contain a cluster of articles that are considered “participation articles”. The convention does not encourage pressurising children to participate, but to provide all necessary means to encourage and enable children to make their views heard.

• Article 5: evolving capacities;

• Article 9 (2) : in proceedings regarding separation from parents;

• Article 12 (1): right to express views and have these views heard;

• Article 13 (1): freedom of expression, etc.;

• Article 14 (1): freedom of thought, conscience, and religion; (2): rights and duties of the parents, etc., to provide direction to the child in the exercise of his or her right consistent with the evolving capacities of the child;

• Article 15 (1): freedom of association and assembly;

• Article 16 (1): right to privacy and freedom from unlawful attacks on honour; (2): right to protection by law against such interference with privacy or attacks;

• Article 17: role of the media and access to information;

• Article 21: adoption;

• Article 22 (1): refugee seeking;

• Article 23 (1): children with disability and the right to active participation;

• Article 29 (1. a-e): education ( preparation for the child for responsible life in a free society, etc.

(I believe that Article 2 should be the backbone of this “participation cluster”: Non-discrimination. All children must be allowed to participate and have access to the entire process.)

Many people have written and spoken in detail about the different forms of participation. There have been several typologies suggested for participation, explaining it as a process rather than a product. When we talk about participation, we are reminded of the “ladder of participation”.

I will not elaborate on the hierarchy of participation. I will continue my intervention on the basis of the experience of the issue of child participation in terms of having access to and participating in the reporting process to the Committee on the Rights of the Child.

In many countries, governments ratify a convention and it just stops there. Civil society is not always included in the reporting process. And yet, often times, it is civil society that takes up the responsibility of implementing the convention with very small funds. Furthermore, in some countries, civil society does not have the freedom to monitor implementation nor does it have the freedom and/or capacity to produce an alternative report. Alternative reports coming from NGOs are crucial to the Committee’s work.

It was very surprising for the Committee to find out that so many children still have not heard of their rights in general and of the CRC in particular. Many children do not know they are holders of rights and they are indeed entitled to exercise them and that their rights are to be protected, upheld, and promoted. This would be the first step in enabling children to become active and responsible citizens.

I would like to incorporate all that has been written about the different levels or types of participation, and present my concept of participation. Participation should be a circular process, allowing different points of entry, taking the evolving capacities under consideration. The different entry points are: (1) the review process; (2) follow-up and monitoring process; and (3) reporting process.

Participation in the review process

The review process is divided into many phases. There is the pre-sessional working group phase and the actual dialogue with the State Party phase. Children can come to the pre-sessions and directly speak with the Committee members. They can also come during the dialogue process. We have had children and youth groups requesting separate meetings with the Committee. There have been children in the State Party delegation.

Participation in the follow-up and monitoring process

Awareness-raising campaigns are always included in the Committee’s recommendations and concluding observations. We put the responsibility on the government to conduct these activities, often times in partnership with civil societies and technical assistance from international agencies. Children must be included to play active roles in educating other children about their rights. The spill-over effect would be that adults will also become aware that children are indeed rights-holders. This can also be a catalyst to educating adults that giving rights to children does not mean complete turning over of all powers to children.

Participation in the reporting process

The Committee receives many different sources of information about the State Party at review: the State Party report, different UN agencies, national human rights institutions/ombuds offices, national and international NGOs, and alternative reports coming from young persons.

When children are allowed to participate in the general process of the reporting process, then they can build capacity to actually produce a report depicting their priorities and their assessment about the implementation of the all the provisions enshrined in the convention.

I would like to conclude my intervention by suggesting the following “keys to success” for participation.

IV. Keys to success

• Children should be consulted and informed in accordance to their evolving capacities.

• Entry points may vary, depending on the evolving capacities of the child.

• Selection of children should be democratic and representative as much as possible.

• The ultimate goal of participation should be child initiated and directed, but in partnership with adults.

• Children should be ensured to express their views in their own language.