Child Rights IPHR, studocucom,

‘The Children’s Convention is based on the mistaken premise that children can enjoy rights
independently of others. It is for this reason that their rights continue to be systematically abused.’

Historically, the concept of childhood itself came to be in the medieval times, prior to which according
to historian Phillip Aries, children were treated no differently than adults. Michael Freeman deduces this
to be the very cause of children being stripped off their independent wills, particularly during the
Victorian period which was characterized by repressive child rearing practices. This has led to a lot of
ambiguity regarding whether children are capable of enjoying rights independently. The concept of
children’s rights first emerged in the 1970s and 1980s, that perhaps children were capable of having
rights separately from that of their parents or guardians. This was solidified in the US Supreme Court in
the case of Re Gault, where the courts emphasized that children much like adults are entitled to
protections enumerated in the US constitution. The ambiguity of what are precisely child rights, can be
seen through the difference of opinion between two schools of thought – the child liberationist and the
child protectionist model. Pioneers of the former model, Holt and Farson are of the view that child rights
may only be attained where they have absolute autonomy, independent of their parents. On the other
hand, supports of the latter model such as Freeman believe that our knowledge of biology and
psychology insist that children are dependent, vulnerable and at the risk of abuse, therefore incapable
of exercising their rights independently. Convention on the rights of child, was formed with careful
deliberation and regard of this debate, this included it being the only human rights instrument to
incorporate input from NGOs worldwide. according to academics such as Freeman, the convention
reconciles with both schools of thought and thus incorporates elements of both- one remedying the
pitfalls of the other, who is of the belief that this the very reason why a child is defined under article 1 of
the CRC as 'every human being below the age of 18 years, unless under the law applicable to the child,
majority is attained earlier. The latter part concerning majority was added with regards to Islamic states.
The Convention on the Rights of the Child developed various provisions to protect the child’s interest,
Von Struensee divides these into four primary areas of concern for children: the survival, development,
protection, and participation rights. While ensuring these, the convention makes it an obligation upon
the state and on all levels of society including the family to give primary consideration to “the best
interests of the child”, virtue of Article 3 of the convention, this was also reiterated by the UN general
assembly in its 44th session. This session also expanded upon the right of survival, enshrined in Article 6
of the convention, survival rights require participating states to recognize an “inherent right to life” and
to ensure to the “maximum extent possible the survival and development of the child.” There are
various articles in the convention that facilitate this, particularly articles 24 through 26 that impose
obligations upon the states to ensure the highest attainable level of healthcare, including benefits to
ensure the best development for a child. As the survival of infants in inextricably linked with the health
of the other, General Comment no. 15 by the Committee on the Rights of the Child, authorities must
afford mothers with the highest form of healthcare as well to ensure survival of the child.

Although article 27 explicitly relegates the responsibility of a child’s physical, mental and social
development on the parents. According to Mower, the right to development includes the right to
education, provided in article 28 and expanded by article 29, special care for disabled children enshrined
in article 23, social development in article 17, spiritual and moral development in article 14 - the only
provision which requires the parents to give the child ‘direction’ in this regard The right of education
under article 28 is wholistic, as per Mower imposes an obligation upon states respect to the
development of children "through the educational process applies not only to children within

its jurisdiction but also to those in other countries." As is stated explicitly in Article 28(3), which also
emphasizes on taking in account the needs of developing countries. Furthermore, this article also
advocates for “equality for all” by ensuring education is “free for all” thus ensuring no child suffers from
any form of discrimination. This commitment towards non-discrimination in the convention is also
articulated in Article 2 of which is clear in that no ('or status') discrimination is permitted, even if the
status of the child violates the law. Furthermore, under Article 30, the children of minorities too, have
rights to enjoy and learn their culture freely. In various cases of child custody, where the rights of child
custody and the ‘best interests’ of child are to be balanced. Various, other international courts such as
the European Court on Human Rights also uphold this principle, as was illustrated through the case of
Hoffmann v. Austria, the ECtHR found a violation of art. 8 ECHR (right to family life) taken in conjunction
with art. 14 ECHR (non-discrimination) as a result of the Austrian courts' refusal to award custody to a
mother because of her religious inclinations as a Jehovah’s witness. This was also the case, where the
parent may have another sexual prefer, In Salgueiro da Silva Mouta v. Portugal, where the ECtHR found
a violation of both articles 8 and 14 by the state of Portugal, where parental responsibility was not
granted to a father, who was in a homosexual relationship. Another part of the convention, focuses on
protection of children worldwide. In particular Article 19, requires states to take legislative,
administrative and social measures to ensure the protection of children from abuse, neglect, and
exploitation, at the hands of care givers. The states must also establish social programs and reporting
procedures in this regard. In the decision given by the Committee on the Rights of Child, in KYM v
Denmark, it was held that Denmark violated the International Convention on the Rights of the Child by
failing to consider the best interests of a child when assessing the risk of the child being subjected to
female genital mutilation if returned to Somalia with her mother. The CRC highlighted interpretations
from its general comments to note that “State parties have an obligation under article 19 of the
Convention to prohibit, prevent and respond to all forms of physical violence against children, including
harmful practices such as female genital mutilation,” and that “State parties shall not return a child to a
country where there are substantial grounds for believing that he or she would be subjected to a real
risk of irreparable harm.” The CRC held that the deportation proceedings against the mother and
daughter did not take proper safeguards to ensure the child’s wellbeing upon return and that it violated
Articles 3 (best interests of the child) and 19 (protection from violence) of the Convention.Article 20 also
recognizes that where the child may be deprived of a family, the state will provide ‘special care and
assistance’ in this regard, including situations where a child may be abandoned. Article 21 also permits
adoptions and gives specific standards for states to monitor inter-country adoption. Under the CRC,
states must ensure that with all adoptions “the best interests of the child shall be the paramount
consideration.” This also includes giving weight to the child’s culture and religion. The ECtHR recognized
this in the case of Chbihi Loudoudi v. Belgium, (ECtHR) (2014), the ECtHR held that the non-recognition
of kafala by Belgian authorities was in the best interests of the child. In the case at hand, the ECtHR
agreed with the Belgian authorities that the maintenance of the single parent-child relationship in
Morocco and Belgium with its biological parents served the child's interests much better than an
adoption by non-biological parents in Belgium. That inter-state adoptions must only proceed if they are
in the interests of the child is confirmed by the 1993 Hague Convention on the Protection of Children
and Cooperation in respect of Intercountry Adoption. Finally, the convention requires states to ensure
that children must not be subjected to torture This includes a ban on capital punishment and life
imprisonment for children under eighteen. The remainder of Article 37 deals with the child’s rights while
being detained. Specifically, any detention must be a “measure of last resort and for the shortest
appropriate period of time. "If children are to be detained, they must be able to maintain their dignity,
be separated from adults, maintain contact with their parents, and be able to seek out and receive legal
representation. Regarding juvenile detention, 22nd session of the committee on the rights of child
stipulated that the implementation of these provisions must be in accordance with existing laws of
international standards, in particular the ‘Beijing Rules’. The elements of the child liberationist model
become relevant, where the participation rights under the convention provide basic respect for a child’s
opinion. States must ensure that children have the right to develop their own views and the right to
“express those views freely in all matters affecting the child.” States must also ensure that the child has
the right to “freedom of expression,” “freedom of thought, conscience and religion, and “freedom of
association and to freedom of peaceful assembly”, under articles 12,13,14 and 15 respectively. The
convention also focuses on particular forms of exploitation of children, such as sexual abuse, child
pornography, trafficking and associated crimes under Articles 34, 35 and under the 2002 Optional
Protocol to on the sale of children, child prostitution and child pornography which renders such conduct
an extraditable international offence within article 5 of the protocol. Further measures under Articles 1
and 3 ensure that the offenders must be prohibited and punished from such activities, even extra-
territorially. It also provides additional protection to the children victims of such heinous crimes under
Article 8. Furthermore, with the increase in armed conflict post 9/11, especially the rise of terrorist
organizations such as Daesh has led to escalation in the number of child soldiers in the world. Although
this cause of concern was first mentioned by the UNSC in resolution 1071, in context of the civil conflict
in Liberia, it was deemed a war crime under resolution 1261. The Convention itself, in particular article
38(3) also prohibits states from recruiting children in armed forces. A similar provision is present under
Additional Protocol II of the Geneva Convention of 1949. The ICC statute under Article 8 also deems it a
war crime, there is also acceptance of recruiting children in armed conflict as a form of customary
international law as was held by the Sierra Leone Special Court in the case of SLSC Prosecutor v.
Norman. The Optional Protocol of the CRC, in particular focuses on the ‘best interests’ of the child in this
regard, the obligation on state parties to ensure no child below 18 takes part in such hostilities and also
condemns the recruitment of children by armed groups distinct from a state’s armed forces. Another
prevalent predicament concerning children is that of child labour, which is covered by the provision
prohibiting “economic exploitation” of children under Article 31. Provisions prohibiting child labour and
bonded labour also exist in other international instruments such as Article 8 of the ICCPR against slavery,
article 7 of ICESCR - which is inconsistent with practice of bonded labour and various conventions
adopted by the ILO, including Minimum Age Convention of 1973. However, the practicalities of
implementation law are one of the major issues to counter, if child labour is to be eradicated. As can be
witnessed in case of India, which a state party to majority of the conventions including the CRC, but
remains to be one of the countries considered worse with regards to child labour, along with Pakistan
and El Salvador. Despite the enactment of various domestic legislations and litigations in this regard,
only 7 employers were prosecuted between 1990 and 1993. The main problems identified were the lack
of political will, and according to a Human Rights Watch Report, ‘high caste and local landowning
officials’ were the main impediment in provisions relating to bonded labour. Such issues continue to
plague the implementation of child rights, despite implementation mechanisms under the CRC. Seitles
believes that its implementation mechanism is premised on the idea that ratifying States will
incorporate its provisions into their national laws. Thus, the degree to which the Children's Convention
will improve children's lives will depend greatly on whether State Parties actually implement and comply
with the Convention by adopting measures which conform to its mandates. As above analysed, in case
of India and child labour, incorporation into national laws may not be the right measure to rely upon for
implementation of rights. Furthermore, the requirement of states to take measures in this regard under
Article 4 is limited by the wording -”to extent of their available resources”. Therefore, according to
Seitles, this Article may result in an "escape clause" for poorer nations (i.e., the very nations where the
mandates of the Children's Convention are the most needed). Furthermore, under article 44 of the
convention, a State Party is obliged to submit an initial report two years after ratification. Subsequently,
periodic reports are due every five years and under Article 46, the committee on the rights of child can
make general recommendations to state parties based on information received under article 44.
However, other enforcement mechanisms of the convention, include the individual complaint
mechanism, as a result of the Communications Protocol of 2011. The aforementioned case of KYM v
Denmark, being the first case to be decided under this protocol mechanism. Particularly, helpful is also
the inquiry procedure under Article 13, which provides for the committee to conduct an inquiry with the
consent of the state party regarding systematic or grave violations of the convention. It is noteworthy
that article 6 of this protocol, allows for interim measures to be ordered by the Committee to avoid
irreparable damage to the victim’s situation, a measure not present in any other UN human rights
treaties. Therefore, although the idea of what constitutes as child rights continues to plague various
academics and scholars, the reality of the child rights is that the convention is essential to the core
issues concerning children worldwide today – exploitation of children economically, sexually, in armed
conflict and the millions of children abandoned and displaced as a result of said armed conflict. Although
it may not be successful in many regards, particularly due to issues of implementation but there is
progress in providing children rights.