International justice for children
Some of these obvious breaches of the CRC and other international instruments have been challenged successfully before some of these regional or international mechanisms, and also through constitutional challenges at national level. But the breaches persist.
And we have to ask why there have been – relatively – so few attempts to use these mechanisms to pursue the many breaches. It is certainly not because of the effectiveness or availability to children of remedies for breaches of their rights at national level.
Children are subjects of rights, holders of rights. We keep telling them so. Children are good at detecting adult hypocrisy, and there is too much of it around this issue. The following are some indications of the lack of priority that has been given to promoting use of the mechanisms to further children’s rights (and they lead to obvious recommendations that should arise from this meeting:
• There is no complete analysis of the relevant jurisprudence/case law of these mechanisms, relevant to children’s rights;
• This is the first meeting on children’s access to international justice – congratulations to the Council of Europe and to the project “Building a Europe with and for children” – but we need follow-up;
• There is as yet no complaints procedure attached to the Convention on the Rights of the Child – soon, all the other international instruments will have one so this is really a matter of discrimination now and we should encourage the rapid drafting and adoption of an appropriate Optional Protocol to the CRC.
Another substantial problem is in convincing governments (among them my own, the UK) that the Convention on the Rights of the Child is a legal instrument conferring legal obligations on states when they ratify it, whether not it is incorporated into their domestic law. The Convention is not just “advice” to be ignored at the will of states. The Law on Treaties insists that “Every treaty in force is binding upon the Parties to it”, and makes clear that a state “cannot invoke their internal law as justification for its failure to perform a treaty”. We all need to work to assert the status of the CRC as a legal instrument.
All the international and regional mechanisms which we are considering, including the European Court and the European Committee of Social Rights, are increasingly using the Convention as the standard when considering cases relevant to children’s rights.
We also need to work, and not just on behalf of children, for increased acceptance – ratification – by States of these mechanisms. For example, only 12 member states of the Council of Europe have so far accepted the Additional Protocol to the Social Charter allowing for collective complaints.
The lack of strong strategic advocacy, including legal advocacy, for children’s rights demonstrates what a very small pool there is, even globally, of active children’s rights advocates. We need to increase their number through training and dissemination of information, including on how to make use of these mechanisms, and also encourage more use by promoting the impact that successful use of the mechanisms has had in some cases.
Now, finally, how to make these mechanisms genuinely accessible to children and to those who represent them. Thomas Hammarberg, Human Rights Commissioner for the Council of Europe, and myself drafted a list of key requirements as a practical contribution to the debate:
• Children and those working with and for them need to know these mechanisms exist and that they are accessible to children.
• States which have accepted any of these mechanisms need to guarantee children unrestricted access to use them. For instance, they must ensure that there is no legal principle requiring parents’ consent for such action (today, this is a real problem in several European countries, and others in all regions, where children cannot make individual applications to domestic courts, let alone to international mechanisms).
• Children should be able to apply at any age. When others are acting on behalf of children, there should be some process whereby the mechanism strives to ensure that the application is being pursued in the child’s best interests and, where the child has capacity, with their consent. Also, it should be possible for groups of children, and child- and youth-led organisations, to make complaints.
• The mechanisms must be genuinely accessible to children. Each mechanism should review all aspects of their procedures to ensure that this is the case. In particular:
– information about the mechanism should be disseminated in child-friendly language and in places where children and their representatives are – in particular, to children in schools (including as part of the regular curriculum), hospitals and other institutions, including where children may be detained;
– any “hurdles” on applying should be carefully reviewed from a children’s perspective. For example, the common condition that applicants must have exhausted domestic remedies should be applied sensitively in the case of children: mechanisms should be very careful not to reject applications unless they are really confident that domestic remedies are effective and genuinely available to children. Similarly, time limits on making an application should be treated flexibly in the case of child applicants who might not have had access to information on the mechanism;
– consideration should be given to fast tracking applications from or on behalf of children, with an understanding of children’s sense of time and the urgency of remedying breaches of their rights while they still are in their childhood. Decisions should be arrived at as rapidly as possible, subject to the need for full consideration of the case. Any process for enforcement of the decision should also be speedy;
– if the procedure includes a hearing, all aspects of it should be reviewed to ensure it is child-sensitive (see UN Guidelines in Matters of Justice for Child Victims and Witnesses of Crime, Economic and Social Council resolution 2005/20, 22 July 2005);
– the whole process should be able to guarantee the anonymity of the applicant when necessary and requested;
– those involved in the mechanisms, as decision-makers or judges and as secretariat or support staff should receive special training. Training should also be available for lawyers and others representing children before the mechanisms;
– there should be possibilities of legal aid adjusted to the needs of children;
– summaries of decisions on applications concerning children should be issued in child-friendly language.
Let’s be clear that children themselves are not going to flood these
mechanisms with their own complaints, however child-friendly they become. It
is going to remain largely an adult responsibility and obligation to pursue
breaches of children’s rights: our obligation because of our adult success
in breaching them. Making these mechanisms accessible to children and
child-friendly is a principle, and related to the obligation under article
12 of the CRC. It will undoubtedly increase effective use of the mechanisms
not only by some children but by all those in a position to genuinely
represent them – and that could contribute substantially to reducing
breaches of children’s rights.