Helen Stalford and Laura Lundy
Although the UN Convention on the Rights of the Child recognises procedural rights of the child in addition to substantive rights, it is rather silent on the fundamental right to an effective remedy. The concept of access to justice for children has nevertheless emerged in the past decades and manifested itself firmly in the international human rights and sustainable development agendas. Access to justice is grounded in the right of the child to seek remedies in case of (alleged) rights violations. It implies legal empowerment of children and access to justice mechanisms and remedies that are child-sensitive. So far, access to justice, with a specific focus on children, lacks careful consideration, conceptualisation and contextualisation in academic research and writing. This contribution explores the meaning of access to justice for children, as a right and procedural concept, and paves the way for the development of a more specific research and implementation agenda.
The phrase “evolving capacities of the child” appears twice in the uncrc, under articles 5 and 14(2) in the framework of parental guidance. Yet the term “evolving capacities” appears over 80 times in the General Comments of the crc Committee. This paper examines the Committee’s use of “evolving capacities” in its General Comments, suggesting that the term has been treated as an enabling principle, an interpretative principle, and a policy principle within the framework of the uncrc. A broad principle of evolving capacities has thus emerged under the uncrc that informs not only the framework of parental guidance, but the whole of the Convention. However, the crc Committee does not recognise “evolving capacities” as a general principle or otherwise under the uncrc. This paper examines why this might be, and concludes that more consideration needs to be given to the role of “evolving capacities” as a principle under the uncrc.
A Comparative Evaluation in Light of Article 12 of the United Nations Convention on the Rights of the Child
In the debate on child participation in family law proceedings, a pertinent question is whether or not to provide children with representation and if so, how to provide it. Article 12 of the United Nations Convention on the Rights of the Child (uncrc) provides minimum standards for the child’s right to express views and to do so, in judicial proceedings, through a representative. This article takes these minimum standards as a yardstick to evaluate the legal frameworks of child representation in the family law proceedings of four jurisdictions: Australia (New South Wales), France, the Netherlands and South Africa. On the basis of a systematic legal comparison and evaluation, this article presents a “compliance report card” and concludes with new insights and questions regarding children’s representation and Article 12, uncrc.
Jill Duerr Berrick, Jonathan Dickens, Tarja Pösö and Marit Skivenes
Child friendly justice and access to justice for children are explicit concerns for the European Union, the Committee on the Rights of the Child, the Council of Europe and the Child Rights International Network. This study examines court systems as child-responsive by eliciting the views of judicial decision makers on child protection cases (n = 1,479) in four legal systems (England, Finland, Norway and the USA (represented by California)), based on an online survey. In this paper, we asked judicial officials who have the authority to make care order decisions how they view the child-friendliness of the courts. We presented them with six statements representing standard features of child responsive courts. Findings show that there is considerable room for improving both structure and practice of the court proceedings, for example the use of child friendly language and child-sensitive time frames. There were variations across states, and some variation across type of decision maker. Implications for the development of education and training about the opportunities for children’s engagement are considered.
Jozef H.H.M. Dorscheidt and Irma M. Hein
The quality of health care for children depends much on the availability of relevant results from medical research with children as subjects. Yet, because of their vulnerability and assumed incompetence to take part in decision-making, children have often been excluded from taking part in medical research, so as to prevent them from harm. Empirical data on children’s competence to consent to such research used to be rare, but recent developments in this field have created more insights in the myths and realities concerning minor patients’ capacities to decide on medical research participation. Against the background of relevant international, European and domestic legal frameworks concerning the rights of children as participants in medical research, this article goes into instruments such as MacCAT-CR, a semi-structured interview format useable as a competence assessment tool for clinical research involving children. On the basis of this, several recommendations are defined to enhance such research, as these may do sufficient justice to the health interests and the capacities of children, while at the same time supporting researchers and child research participants when facing decisions about pediatric research options.
Jan Emil Ellingsen and Anne G. Danielsen
Little research has focused on and tried to understand the link between children’s participation in sports and their human rights. In Norway, children’s leisure athletics and sports participation are regulated through rules of sport (crs), voted in the Executive Board of the Norwegian Olympic and Paraolympic Committee and Confederation of Sports (“Idrettstinget”). The crs represent formal legislation rooted in the un Convention on the Rights of the Child, binding for all Norwegian sport coaches in their work with children until the age of 13. This qualitative study investigates coaches’ views of talent and talent development, and examines their views in the children’s rights perspective. The study is based on interviews with eight professional coaches in football (soccer), gymnastics, swimming and skiing. In important areas the coaches’ views are consistent with children’s rights; however, there are also coaches who speak out in violation of the rights.
Assessing and Determining the Best Interests of the Child in Migration Procedures
Margrite Kalverboer, Daan Beltman, Carla van Os and Elianne Zijlstra
The best interests of the child principle has a legal base in the United Nations Convention on the Rights of the Child. In 2013, the United Nations Committee on the Rights of the Child published guidelines on the implementation of the best interests of the child in General Comment No. 14. Together with the Best Interest of the Child Method, which is developed by Zijlstra et al. (2012), this framework offers a valuable tool for decision-making processes concerning children, in particular, in this review’s context, in migration procedures. In the assessment of the best interests of children who are forcibly migrated, special attention has to be given to risk factors associated with the different phases in the migration process that may harm their mental health, well-being and development. This requires knowledge based on academic studies and the involvement of professionals who have knowledge of children’s mental health and development.
Time to End the Defence of Reasonable Chastisement in the UK, USA and Australia
Andrew Rowland, Felicity Gerry and Marcia Stanton
As at March 2016, 49 states had reformed their laws to clearly prohibit all corporal punishment of children (United Nations 1989) in all settings, including the home (Global Initiative to End All Corporal Punishment of Children, n.d.) By January 2017 this number had reached 52. As the trend moves towards abolition, it is not an acceptable position for the United Kingdom (uk), the United States of America (usa) and Australia (Poulsen, 2015) to remain missing from that list. Whilst they are, effectively, a child (a person aged under 18 years of age), is the only person in all three countries that it is legal to hit. This article seeks to restate arguments in this area in a simple way to restart the debate in a modern context where understanding of child abuse is perhaps more widespread than it ever was in the past. On 20 October 2014 a report, Living on a Railway Line, was launched in the uk to mark the 25th anniversary of the signing of the un Convention on the Rights of the Child, which took place on 20 November 1989 (Rowland, 2014). It recommended removing the defence of reasonable chastisement in relation to the punishment of children. This article seeks to build on that agenda in a comparative context taking a three way perspective from the uk, the usa and Australia. It concludes that moves to prevent family violence are progressive but the position of a society where physical punishment of children is permitted yet child abuse is forbidden is not a tenable one. Reducing the number of cases of child abuse must begin with a clear message from society that physical punishment of children, whatever the circumstances, is unacceptable. The situation is serious enough to introduce aspirational legislation to remove justifications for physical punishment of children with the aim of modifying behaviour within society.
The article proposes adopting the Capability Approach as a theoretical framework to analyse the child’s right to development. Currently, the child’s right to development is realised as the child’s right to become an adult. This interpretation is problematic on several grounds, primarily its usage of developmental psychology as an underlying narrative to conceptualise childhood and interpret children’s rights, and its lack of respect for children’s agency. Using the Capability Approach’s conception of ‘human development’ as an alternative framework can change the way in which childhood and children’s development are conceptualised and, consequently, change the interpretation of the child’s right to development. It can accommodate simultaneously care for the child’s future and the child’s life at the present; promote respect for a child’s agency and active participation in her own growth; and lay the foundations for developing concrete measures of implementation.