Leiden Law Blog

The legal status of the child under the UN Convention On The Rights Of The Child

Posted on by Ton Liefaard in Private Law
The legal status of the child under the UN Convention On The Rights Of The Child

On the 20th of November 2012, the 23rd Anniversary of the United Nations Convention on the Rights of the Child (CRC) was celebrated. It was on Universal Children’s Day in 1989 that the UN General Assembly adopted the CRC and thereby agreed upon the recognition of children as holders of human rights. This marked a significant change in how children are to be perceived under international human rights law.

The CRC attributes civil, political, economic, social and cultural rights to children (i.e. human beings under the age of 18; art. 1 CRC). The 193 States that have ratified the CRC – only Somalia, the United States and South Sudan have not done so yet – are under the obligation to ensure that every child can enjoy his rights, effectively and without discrimination. The CRC is based on two assumptions regarding children. First, children are equally entitled to human rights; they should have rights and freedoms like adults; and second, children are a special group of human beings, with entitlements related to their special characteristics, including the right to education (art. 28 and 29 CRC) and the right not to be separated from his or her parents (art. 9 CRC). There are two general provisions of the CRC that particularly recognize the child’s special status. The first one is article 3 that provides that the best interests of the child must be a primary consideration in all actions concerning children and the second one is the right to life, survival and development (art. 6 CRC).

There is one right that represents in its clearest form the human rights image of the child under the CRC and that should therefore be regarded as one of the core CRC provisions: the right of the child to be heard (article 12 CRC). This right underscores that a child is not only entitled to substantive human rights, but that he also has procedural rights. In conjunction with a number of participatory rights, including the freedoms of expression, association and information (art. 13ff CRC), it stipulates that the child has the right to participate in all forms of decision-making that affects his position. This assumes that the child has agency and that he can claim and demand his rights. Article 12 CRC has given the child a voice that has to be taken seriously. This provision lies at the heart of the legal status of children under international human rights law. It has many different implications, among many others for court proceedings and judgments, and is strongly interconnected with other fundamental rights, such as the right to a fair trial (see art. 40 CRC, art. 14 International Covenant on Civil and Political Rights (ICCPR) and art. 6 European Convention on Human Rights) and the right to an effective remedy (see e.g. art. 2 ICCPR).

In my inaugural lecture on the 19th of November 2012, I argued that the legal position of children has not yet been taken seriously enough. Although the rights and interests of children gained significant attention at the global as well as the domestic level, this attention does not reflect an unconditional acceptance and endorsement of the human rights image of the child under the CRC. This is a serious obstacle to the full implementation of the CRC and the recognition of its great potential for the lives and futures of children around the world. The implementation of the legal status of children is particularly jeopardized by the everlasting, but ‘old-fashioned’ focus on children as needy and vulnerable individuals resulting in negligence towards the procedural aspects of children’s legal status. Moreover, there is no coherent vision on the implications and implementation of the legal status of children and there is too little attention for the question how to effectively incorporate the legal status into existing local practices and perceptions.

It is a positive sign that, in December 2011, the UN General Assembly adopted a Third Optional Protocol to the CRC on an individual communications procedure for children. This legal remedy for children before the UN Committee on the Right of the Child in Geneva has affirmed the full recognition of children’s legal status. It indicates that the international community is willing to support this recognition, which may provide for new ground to fully implement the rights of children.

The text of the inaugural lecture will be published in the course of 2013.

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