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.
Devyani Prabhat, Ann Singleton and Robbie Eyles
This paper challenges the focus on age 18 as an exclusionary point in law for migrant young people, particularly unaccompanied migrants, with insecure legal status. Initially meant to provide a protective category of “childhood” in law, focus on age 18 creates a sharp transition point in law for young people. This chronological concept of age does not match up with the reality of lives of many young people who step into adulthood without being able to live in a self-supporting manner. Law recognises the constraints and provides some respite for British national children who are in care; however, non-UK migrant and/or asylum-seeking young people in this situation are immediately at risk of losing their liberty. We suggest that non-British migrant young people aged 18–21 should be treated as a youth category in a manner similar to that used for British young people in care.
A long-standing debate on the concept of rights sets the so-called choice theory in contrast to the interest theory. As has been noted in the literature, the debate is relevant for the question of whether children can be conceived as rights-holders at all. This essay reflects on the concept of rights as applied to children, motivated by the view that instead of settling the conceptual issue, we should directly discuss the moral status of children as possible rights-holders. In this way, two main insights are gained. First, it is pointed out that the moral position of children – if they have rights – is very different from the status of adult rights-holders. Second, it is made clear that regardless of whether children have rights, the focus on duties towards children, rather than a focus on their rights, provides us with a clearer picture of children’s moral status.
Laura Lundy and Helen Stalford
This article examines the use of limitation laws in the context of civil law claims under English law and Scots law brought by adult claimants in relation to allegations of historical abuse in childhood. Using case law as a barometer of judicial attitudes towards such claimants and, by extension, towards the child victims of abuse themselves, differences in judicial approach between the two jurisdictions are critically assessed, entailing some weighing and evaluation of the argumentative coherence and persuasive force of the judicial decision-making in question. Key aspects of the discussion are framed in terms of recurrent issues that have arisen in relevant case law. The overall aim is to inform a wider debate about the success or failure of civil law mechanisms of redress in rendering justice to those whose right to emotional, physical, psychological or sexual integrity has been violated in childhood.
Rebecca Thorburn Stern
Article 4 of the UN Convention on the Rights of the Child stipulates that state parties have a positive obligation to implement the necessary legal measures to secure the rights recognised in the Convention. The crc Committee has stated that incorporation is its preferred method of implementation. In Sweden, the issue of incorporation has been the subject of a lengthy and contentious debate. This article aims to unpack the reasons for this. It is suggested that technical-legal arguments against the incorporation of the crc are grounded in and intertwined with cultural-legal arguments. While these arguments may be more or less clearly expressed by the various parties in the Swedish debate, I argue that they seem to have played an important role in the process through which this international treaty has been made applicable on the domestic level in Sweden.
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.
Sara Imanian and Nigel Patrick Thomas
This article reports a study of the impact of independent human rights institutions for children, using methods drawn from critical realism and appreciative inquiry. A survey of member institutions of the European Network of Ombudspersons for Children enquired into the contexts, mechanisms and outcomes of their work. The results showed wide variation in the situation, aims and methods of working of the institutions, along with some strong commonalities. The survey was followed by two in-depth case studies, to explore how staff and external stakeholders understood and evaluated the impact of their work. A conclusion was that the impact of such institutions has to be understood in a grounded way, and pre-designed general indicators are therefore of limited value. One product of the research is a template, developed collaboratively with the institutions, which can be used to understand and evaluate the effectiveness of their work.