Abstract
Recent attempts to systematise the constitutional protection of children’s rights by creating constitutional typologies have been a useful first step in theorising this growing field. These efforts have focused on the wording of constitutions rather than their application, while forms of constitutional protection that are less textually explicit and more difficult to detect have received limited attention. By exploring the constitutional protection of children’s rights in France, this article demonstrates that some constitutions poor in explicit provisions on children’s rights can provide valuable protection through their general provisions. The article further argues that constitutional typologies of children’s rights protection should be expanded to encompass non-liberal constitutions.
1 Introduction
There has been a recent wave of interest in how constitutions contribute to the protection of children’s rights. Although the constitutional protection of children’s rights had already been analysed (in the US by, e.g., Woodhouse, 1999; Buss, 2004), John Tobin, in a 2005 article, made an important first step towards a wider and more systematic comparative study (Tobin, 2005). The article was timely and placed the relationship between children’s rights and constitutions on the global research agenda. It came after the mass ratification of the UN Convention on the Rights of the Child, 1989 (crc) at the end of the Cold War – a time of expanding democratisation through constitutional reform, which sometimes entailed the insertion of children’s rights-relevant clauses in constitutions (see the constitutions of, for example, Albania, Armenia, Bulgaria, South Africa, Romania; for a comprehensive list, see Tobin, 2005: 107). Since 2005, the literature on the constitutional protection of children’s rights has grown, but most publications have focused on specific jurisdictions without attempting to theorise the field (e.g., Nolan, 2007; Sloth-Nielsen and Kruuse, 2013; Skelton, 2017; Haugli et al., 2019). In 2019, Conor O’Mahony made a new attempt at theorisation, arguably refining Tobin’s embryonic categories (O’Mahony, 2019).
In their respective articles, Tobin and O’Mahony create constitutional typologies of children’s rights protection. Their typologies differ from those in the general literature on constitutional law because they aim to probe the constitutional protection of children’s rights.
Tobin divided constitutions into “invisible child” (‘children are neither seen nor heard and are accorded no special treatment or recognition’), “special protection” (children are vulnerable and require special care and protection), and “children’s rights” (protection is addressed in the form of rights, not welfare) constitutions (Tobin, 2005: 94). He acknowledged a category of legal systems that do not fit this typology: those that protect children’s rights through constitutional provisions giving special domestic status to international treaties – including, implicitly, the crc (ibid.). O’Mahony (2019) devised a more sophisticated categorisation along three spectrums: visibility, agency and enforceability. Constitutions can score low or high on these spectrums, depending on their features, permitting a more nuanced understanding of their strengths and weaknesses from the perspective of children’s rights.
These typologies, and much of the literature, have focused on constitutional provisions that provide explicit protection for children’s rights. More general features of constitutions have attracted less attention. The picture of the constitutional protection for children’s rights is therefore incomplete, and there is a tendency to overlook the invisible child constitutions and the protection they provide.
This article shows that, at a close analysis, some invisible child constitutions protect the rights of children. It does so by focusing on France, a significant producer of children’s rights knowledge that is often absent from English-language publications. The article complements studies – including in the US and Scandinavia (Adolphsen, 2019; Hakalehto, 2019; Mattsson, 2019) – that have also demonstrated that invisible child constitutions, or constitutions with limited children’s rights recognition, can provide valuable protection. The article argues that the creation of children’s rights constitutional typologies based on the wording of constitutions is useful to systematise the field but should be complemented by a consideration of other constitutional features, including the more general provisions of the constitutions and the operation of those constitutions. This article calls for the development of typologies that can integrate more effectively the variety of constitutional protections available to safeguard children’s rights, and makes suggestions about some matters to consider when refining the earlier developed constitutional typologies of children’s rights protection.
The article proceeds as follows: Section 2 discusses the role of constitutions in the protection of children’s rights; Section 3 unpacks indirect constitutional protection; Section 4 investigates children’s rights and the French Constitution; and Section 5 concludes the discussion.
2 Constitutions and Children’s Rights
The constitutional protection of children’s rights is a powerful safeguard, although there is no international obligation to provide it (Tobin, 2005: 89–91). Constitutional protection has symbolic value because it recognises children as rights holders (O’Mahony, 2020: 870) and ensures their visibility in the nation’s leading legal document (Habashi et al., 2010). It also has practical value. The high legal status of a constitution generally requires official action, including legislation, to be consistent with it. The entrenchment of constitutions ensures that governments cannot easily alter explicit protection of rights. Explicit children’s rights protection avoids uncertainties about the applicability of general human rights to children, while preventing the rights of adults being prioritised over those of children (O’Mahony, 2020: 871). Constitutionalisation also addresses the democracy deficit that affects children, which limits their access to political processes (ibid.: 873). Constitutional recognition facilitates legal arguments concerning children’s rights and ensures that those rights are not overlooked when in conflict with the rights of others (Van Bueren, 2003: 32).
For some time, the English-language literature, except in the US, was dominated by the South African model. Although the research has now diversified (McLean, 2014; Vandenhole, 2015; Espejo and Lathrop, 2019; Haugli et al., 2019; Magaya and Fambasayi, 2021; Odongo, 2022), South Africa remains a reference point and an inspiration for the constitutional protection of children’s rights. Section 28 of the 1996 Constitution of the Republic of South Africa contains comprehensive children’s rights protections modelled on the crc. The Constitution is supreme and binds all powers in the state. It is also justiciable and safeguarded by an independent and respected Constitutional Court. Several provisions mandate that courts consider international law, including therefore the crc and the African Charter on the Rights and Welfare of the Child (1990), when interpreting the Bill of Rights and statutes (sections 39(1)(b), 233). Thus, the basic features of what seems to be the heteronormative constitutional model for children’s rights protection are an explicit children’s rights clause; a supreme and enforceable constitution; and provisions that accommodate the domestic influence of international law.
The formal legal support enjoyed by children’s rights in South Africa is complemented by the democratic legitimacy that human rights enjoy in that country. These rights were fought for during apartheid and included in the Constitution during momentous political negotiations that saw the country transition from international pariah to democratic state (Sloth-Nielsen and Kruuse, 2013; Skelton, 2015: 13). There has been broad political support for children’s rights post-apartheid, with a strong civil society that monitors, advocates for, and seeks to enforce children’s constitutional rights (Ngidi, 2010).
Some features of the South African experience are difficult to emulate. Few countries have had the opportunity for reinvention in a social, political and legal environment so favourable to children’s rights. The children’s rights constitutionalism inspired by the South African experience has occurred in a context of intellectual domination by liberal constitutionalism (Klug, 2020: 271–272), strongly influenced by the ‘American fetish with judicial enforcement’ (Ginsburg, 2020: 150). Implicit in this model is a deification of the legal dimensions of constitutions, along with an expectation that constitutions protect individual human rights, including children’s rights – preferably through the courts.
Important issues are, however, overlooked. Constitutions are sometimes sites of political contest (Okoth-Ogendo, 1993; Thio, 2012), which impedes their smooth operation. World constitutions are diverse and not all serve the purposes of liberal constitutions, which aim to limit state power and protect individuals (Ginsburg, 2020: 133). For instance, postcolonial constitutions may be “power maps” that act as constitutive instruments of new states, as codes of conduct for state organs, or as affirmations of a society’s values and aspirations. As Okoth-Ogendo (1993) argues, some are ‘constitutions without constitutionalism’. Authoritarian constitutions may be intended as operating manuals, billboards or blueprints, or they may act as window dressing (Ginsburg, 2020: 134). Some may seek to confirm the international legitimacy of a state and encourage the flow of aid (ibid.: 140); others to stabilise political regimes and ensure their continuity (ibid.: 142ff). Their purposes may be indifferent or even antithetical to human rights protection. Some constitutions are antagonistic to the very core of constitutionalism: the limitation of state power through the law (ibid.: 139). Constitutions grounded in religion, ideology or communitarianism are unlikely to be rights-friendly (Grimm, 2020: 128–129; Thio, 2012: 149). While concepts such as the rule of law, democracy and rights may be present in those constitutions, they function differently from their equivalents in liberal constitutions. The separation of powers in socialist constitutions, for example, was a ‘mere administrative utility principle, a division of labour, not of powers’ (Grimm, 2020: 129). Yet these issues are barely engaged with in the literature. Ignoring constitutional diversity risks generating a literature with limited relevance and missed opportunities.
Reliance on the South African example reflects a broader view that the ideal constitutional model for children’s rights protection is centred on the judicial enforceability of explicit children’s rights provisions. To develop children’s rights constitutionalism, we must go beyond the text of constitutions and carefully consider their operation – including the indirect protection they may offer to children’s rights through system-specific features or general constitutional provisions, as attempted in this study. There is also a need to engage with non-Western and non-liberal forms of constitutionalism, as most of the world’s children live in non-Western and non-liberal states. Writers on children’s constitutional rights have avoided tricky questions by focusing primarily on constitutions of liberal inspiration, where children’s rights can be more easily accommodated. While this limitation also afflicts the current study, the underlying argument remains valid: autochthonous constitutional strengths should be identified and utilised to protect children’s rights.
3 The Indirect Constitutional Protection of Children’s Rights
A failure explicitly to recognise children’s rights in constitutions may raise legitimate concerns about their constitutional protection in given jurisdictions. Constitutional silence on the rights of children is not ideal, but invisible child constitutions may provide some indirect protection. For the purposes of this article, indirect constitutional protection refers to the protection of children’s rights under constitutions that lack an explicit recognition or protection thereof. It relies therefore on the general features or provisions of a constitution, and thus varies greatly between jurisdictions. For example, as discussed below, the constitutional provisions governing the relationship between French law and the crc provide indirect constitutional protection to children’s rights in France. In Australia, where no such provisions exist, indirect constitutional protection can be found, for example, in the external affairs power of the Commonwealth Parliament, the rule of law, the separation of judicial power, and judicial review by the High Court (Joseph and Castan, 2019). Constitutionalism (at least in its liberal iteration) is itself a human rights protective mechanism insofar as it aims to limit state power and, consequently, protect individuals.
There are, however, more specific constitutional features that support the indirect protection of children’s rights. The discovery of such features and their potential to safeguard or promote children’s rights depends on how “alive” a constitution is. Inert constitutions, whose content is never negotiated or argued in public processes, whether judicial or non-judicial, are unlikely to allow a discovery of features that may promote or safeguard children’s rights. These features include the protection of (general) human rights; rules on the interaction between domestic and international law; the limits to legislative or executive powers; the justiciability of the constitution; and rules concerning the structure of the state. Constitutions that provide protection for human rights, such as the US Constitution, are relevant to children’s rights protection because general human rights apply to children and can be interpreted accordingly. The domestic rules concerning the relationship between international and domestic law are, as noted above, relevant for the constitutional protection of children’s rights (Tobin, 2005: 95; O’Mahony, 2019: 411). The protection of judicial review in constitutions is also relevant because it safeguards access to effective remedies to rights violations. The justiciability of a constitution – the adjudicatory process whereby the interpretation of the constitution by the political branches is publicly contested – enables a dynamic development of the meaning of a constitution that considers voices other than those of the dominant political actors. The division of legislative and executive power between various levels of government can be relevant for children’s rights protection because it creates opportunities for more children’s rights-friendly actions by willing levels of governance. In Australia, for example, the Australian Capital Territory and the states of Victoria and Queensland have enacted human rights legislation that contains children’s rights, although none exists at the federal level. In the UK, devolved jurisdictions have taken a more children’s rights-oriented approach to law and policy-making than has the Westminster government.
It can be argued that this approach to children’s rights-friendly constitutional features casts the net too widely, capturing features that only peripherally contribute to children’s rights protection. But the constitutional protection of children’s rights does not occur in isolation from the general features of constitutions. Analyses of constitutional wording in abstract are important tools for self-understanding within the children’s rights field, but attention should also be given to constitutions in action.
It is not argued here that general constitutional features are always as effective as the explicit constitutional recognition of children’s rights. One concern is that these features may have an ambivalent effect on children’s rights: they may safeguard but also undermine their protection. For example, the federal structure in Australia both limits and enhances the protection of children’s rights: it is limiting because the Commonwealth government has invoked the reluctance of the states to justify the lack of a federal statute giving legal effect to the crc; it is enhancing because it has enabled some states to pass legislation providing some explicit protection for children’s rights in human rights statutes. The devolved system in the UK has had a similar effect, with Scotland and Wales more willing to give legal effect to the crc than is the Westminster government (Couzens, forthcoming).
The indirect constitutional protection of children’s rights can best be explored by looking at constitutions in action, including those that prima facie have little to offer to children’s rights. This approach offers a deeper understanding of the constitutional protection of children’s rights than that acquired through identifying static features of a constitution. It also gives a clearer view of the scope of protection and allows for a better comparison between different approaches to the constitutional protection of children’s rights. This is illustrated below through an exploration of the French Constitution and the case law it has generated.
4 A Case Study of the Constitutional Protection of Children’s Rights in France
Tobin and O’Mahony refer to France as having an ‘invisible child constitution’ (Tobin, 2005: 101; O’Mahony, 2019: 411), but they acknowledge that the French Constitution indirectly protects children’s rights by providing for the direct application of the crc and its prevalence over domestic statutes. This case study analyses that indirect constitutional protection but also demonstrates that the French Constitution provides some direct protection to children’s rights, grounded in the very wording of constitutional instruments.
This section provides background on the French Constitution, discusses the indirect constitutional protection of children’s rights by the domestic courts, explores the direct constitutional protection of children’s rights, and draws conclusions.
4.1 Introducing the French Constitution
As put by Sophie Boyron, ‘very few constitutions have achieved the degree of ambiguity that can be found in the present French Constitution’ (Boyron, 2008: 145). The most recent constitution, that of 4 October 1958, incorporates by reference the Preamble to the 1946 Constitution, the 1789 Declaration of the Rights of Man and of the Citizen, and the 2004 Charter for the Environment.1 Together, these instruments – ‘texts with constitutional value’ (Goesel-Le Bihan, 2008) – comprise the French Constitution and are included in the bloc de constitutionnalité, or norms with constitutional status (Boyron, 2008: 158; Decaux, 2010: 478; Conseil Constitutionnel, n.d.). The constitutional bloc also includes several fundamental principles of French law recognised by the Constitutional Council under the Preamble to the Constitution of 27 October 1946 (para. 1; Constantinesco and Pierré-Caps, 2010: 224), including freedom of association, the independence of the administrative courts and academic freedom.
The constitutional bloc does not contain international treaties, which therefore do not feature in the constitutionality control of statutes exercised by the Constitutional Council. The conformity of statutes with international treaties is assessed by the judicial and administrative courts in actual disputes, under section 55 of the 1958 Constitution. The distinction between the two forms of norm control is that if the Constitutional Council finds a statutory provision inconsistent with a constitutional text, it declares it invalid; if a judicial or administrative court finds a statutory provision contrary to an international treaty, its validity is not affected but the courts may decide not to apply it in that dispute.
The Constitution does not contain a separate bill of rights, but the Preamble to the 1958 Constitution incorporates by reference the rights in the 1789 Declaration and the Preamble to the 1946 Constitution. The latter refers to the principles of French law and lists certain economic, political and social principles, such as the rights to asylum, to belong to a union, and to strike (paras. 1, 2). There are also principles not formulated in a rights language, such as those relating to providing conditions for the development of the family and individuals, as well as the obligation to provide health, social security, rest and leisure to children, women and the elderly (paras. 10, 11). Other rights are textually interwoven or have been implied or deduced from the constitutional texts (Goesel-Le Bihan, 2008: 1–2). Although, technically, not all human rights-protective constitutional provisions are formulated in a rights language, they are treated as human rights and granted constitutional protection. For convenience, all such norms will be referred to here as “constitutional rights”.
Constitutional rights are protected differently (Goesel-Le Bihan, 2008: 3), depending on the type of right. To pass constitutional muster, the laws interfering with the ‘most protected rights’ – such as freedom of communication, personal security, liberty, and the right to strike – must protect a constitutional value and are subject to a strict proportionality test (ibid.: 4). Other rights can be limited to promote a general interest, provided that the balance made by the Parliament is not manifestly disproportionate (ibid.).
Challenges to the constitutional validity of statutes can be mounted a priori (before the law comes into force) by members of the Parliament and the President, or a posteriori following a question prioritaire de constitutionnalité (qpc). The qpc is an application for a preliminary ruling on the constitutionality of a statute. It was introduced in 2009 by article 61-1 of the 1958 Constitution, which became operational in 2010. qpc s are raised by interested parties who argue before the Court of Cassation (the apex judicial court) or the Council of State (the apex administrative court) that particular legislation breaches their constitutional rights. qpc s are referred to the Constitutional Council if the issue raised is relevant, new and serious.
4.2 The Indirect Constitutional Protection of Children’s Rights: The crc in the French Legal System
General rights in constitutional instruments have been applied to children, but that form of protection is not unique to France. The focus here is on the legal status of the crc in France, which is a special feature of the French constitutional system.
The Constitution gives international treaties, including the crc, special domestic legal status, rendering them part of the domestic law (1946 Constitution: Preamble, para. 14; Pellet, 2008). Once ratified, treaties can be directly applied as legal authority or as a source of domestic law, even without a statute incorporating or transforming their provisions. International treaties also enjoy supremacy or priority application in relation to inconsistent domestic statutes (1958 Constitution: section 55).
France ratified the crc in 1990. Although the Convention has influenced legal reform, no consolidated statute gives it full legal effect. In the absence of a consolidated children’s rights statute, the crc remains the main legal source for domestic children’s rights. As an incorporated treaty, it is a quasi-constitutional legal instrument: it has a supra-legislative legal status under section 55 of the 1958 Constitution, and a cross-cutting application to all relevant matters, regardless of the areas of law – including juvenile justice, family law, education, social assistance, immigration and taxation.
The direct application of the crc partially compensates for the absence of comprehensive legislative absorption. Individuals may directly invoke rights recognised by the crc, even when those rights are not protected by domestic statutes. In the Benjamin case (Civ. 1, No. 05-11285, 2006), the Court of Cassation relied directly on the right of a child to know his or her parents in article 7 of the crc – a right absent from the domestic law – to decide that the father of a child born sous X could recognise his child and have the filiation acknowledged and protected. Accouchement sous X (childbirth under X), a practice accommodated by French law, allows a mother to give birth anonymously. Children born sous X cannot establish their filiation with their mother, which is potentially contrary to article 7 of the crc (crc Committee, 2009: para. 43; cf. Odièvre v. France, Application No. 42326/98 (ECtHR, 13 February 2003); Decision No. 2012-248 qpc of 16 May 2012 (Mathieu E.); Decision No. 2019-826 qpc of 7 February 2020 (Justin A.); Vasseur-Lambry, 2012). The Court in Benjamin maintained the mother’s anonymity.
Another consequence of direct application is that courts can set aside legislation that conflicts with the crc. In the Cinar case (ce, No. 161364, 1997), the Council of State set aside domestic law and directly applied article 3(1) of the crc in administrative proceedings. The Court of Cassation has also endorsed the principle that judicial courts are entitled to assess the compatibility of legislation with article 3(1) (Civ. 1, No. 17-70039, 2018). Further, administrative courts may invalidate secondary legislation and administrative decisions that are incompatible with directly applicable provisions in the crc. In L’Association Aides (ce, No. 285576, 2006), the Council invalidated two decrees that denied non-emergency medical care to illegal immigrant children, due to their inconsistency with article 3(1) of the crc. In L’Observatoire International des Prisons (ce, No. 293785, 2008), the Council invalidated a ministerial decree for being inconsistent with articles 3(1) and 37 of the crc because it did not provide special rules for the treatment of children in detention.
Direct application is, however, a high bar in French law. It is decided on an article-by-article basis, using criteria that are not always clear or consistently applied. For an international norm to be applied directly, it must create an individual right and be sufficiently clear and precise to govern a particular dispute (Bonnet, 2010; Ancel, 2011; Gouttenoire, 2012). These criteria have been applied differently by the Court of Cassation and the Council of State, leading to inconsistencies in the case law.
While the Constitution provides for the prevalence of the crc over inconsistent domestic statutes, only the provisions that are of direct application enjoy supra-legislative status (for critical views, see Abraham, 1997; Dumortier, 2012). If a finding of inconsistency is made, the domestic law is set aside in that particular dispute and, if appropriate, the court can apply the crc. This does not result in the invalidation of the offending provision; in subsequent cases, under different circumstances, other courts could find the domestic statute compatible with the treaty (Magnon, 2014: 15).
The restrictive approach to direct application and treaty supremacy taken by French courts in relation to international treaties is significant because the domestic effect of treaties hinges on the recognition of direct effect. While French courts use European law to give a consistent interpretation to domestic law, general international law is not often utilised in this way (Akandji-Kombé, 2012).
The crc has been at the centre of many debates concerning the direct application of international treaties by French courts (Massip, 1995; Ancel, 2001; Bureau, 2005; Courbé, 2006; Vassallo, 2010). Some general observations can be made. First, only some crc provisions have been applied directly and there has been inconsistency between the provisions considered of direct application by the Court of Cassation and by the Council of State, and in the reasoning of those courts (Couzens, 2015). Second, the crc is invoked and applied in a wide variety of legal disputes, testifying to its legal versatility and the willingness of the courts to consider it. Third, the case law of the Court and the Council is dominated by the application of article 3(1), which has been used at times to give effect to more specific crc provisions. This has benefited some crc provisions not considered of direct application in their own right, such as socio-economic rights – in L’Association Aides, for example, article 3(1) was used to give effect to article 24 – but may have precluded the courts from exploring the direct application of other crc provisions.
The elevated normative status bestowed on the crc by the Constitution has yielded limited results. Courts have set aside statutes and invalidated ministerial decrees for being inconsistent with the crc in a limited number of cases (such as Cinar, L’Association Aides and L’Observatoire International des Prisons) but the case law is dynamic. In 2015, the Council indicated its expectation that administrative courts assess the conformity of domestic laws with article 3(1), failing which their decisions would be set aside (ce, No. 375887, 2015: para. 10). The Court of Cassation has indirectly expressed its willingness to assess domestic law against the crc but has not yet found statutes inconsistent with the Convention (Civ. 1, No. 08-11033, 2009; Civ. 1, No. 09-10439, 2010; Civ. 1, No. 17-70039, 2018).
While the ordinary courts, led by the Court of Cassation and the Council of State, freely engage with the crc, the relationship between the Constitutional Council and the crc is more subtle. The Constitutional Council has repeatedly rejected calls to exercise constitutional control of laws with reliance on the crc. For example, when it was argued that certain provisions concerning the modernisation of the justice system were unconstitutional because, inter alia, they did not sufficiently protect the interests of children as required by the crc, the Council responded that the Convention was not applicable (Decision No. 2016-739 dc of 17 November 2016: para. 53). However, the Convention can influence the Council’s reasoning. Occasionally, the official brief prepared for the Council (dossier documentaire) has included crc articles (de Montgolfier, 2008: 11). Article 3(1) was, for example, mentioned in a dossier documentaire in 2013 (Decision No. 2013-669 dc of 17 May 2013: 44). Official comments on the Council’s decisions, published on its website, have referred to article 3(1) (Commentaire, Decision No. 2013-669 dc of 17 May 2013: 37), and the Council’s terminology sometimes mirrors that of the crc (de Corson, 2019; Decision No. 2018-768 qpc of 21 March 2019 (Adama S.)). Obviously, the Council has at least considered the Convention, although the extent to which the crc has influenced its decisions is less clear.
To avoid trespassing into the jurisdiction of the ordinary courts, the Constitutional Council does not refer to the crc in its judgments. This is consistent with its preference for protecting international rights through the identification of corresponding norms in the Constitution (Catto, 2019: para. 3) or through a ‘constructive interpretation’ aligned with international instruments (Goesel-Le Bihan, 2008: 2). The crc may have a subtle influence on constitutional jurisprudence when used by the Court of Cassation and the Council of State as ‘filter courts’ (Commentaire, Decision No. 2018-744 qpc of 16 November 2018 (Murielle B.): 21). These courts can use the Convention to shape the constitutional question referred to the Constitutional Council in the qpc procedure, or as a gatekeeping device in child-related constitutional issues. For example, when it was alleged that a statutory provision was contrary to the best interests of the child under the crc, the Court of Cassation refused to send the matter to the Constitutional Council because it was ‘not included in the rights and freedoms guaranteed by the constitution’ (Cass. Soc., 25 January 2012, No. 11-40090). The recognition by the Constitutional Council in 2019 of the constitutional status of the best interests of the child, discussed below, changes the position somewhat.
Thus, the French Constitution grants the crc a special status that confers on children’s rights a protection that is constitutional in scope, although not in legal force. While some uncertainty persists in relation to the provisions that enjoy this special status, all crc provisions may benefit from an elevated legal status. The subtle influence of the crc on the constitutionality control exercised by the Constitutional Council further highlights the nuances of the constitutional protection of children’s rights in France.
4.3 The Direct Constitutional Protection of Children’s Rights in the French Constitution
4.3.1 Introduction
French constitutional texts do not contain explicit child-specific rights, but their formulation has permitted the Constitutional Council to develop certain constitutional protections in relation to children (Douchy-Oudot, 2021). These protections are discussed here as a form of direct constitutional protection because they have a textual anchor that at times refers to children, although such texts are not formulated as rights.
Despite the rights language being absent, these protections are assimilated with and treated as rights. The Preamble to the 1946 Constitution contains several child-relevant obligations (paras. 10, 11, 13). The Constitutional Council has used these paragraphs to confer constitutional protection on children’s rights in matters such as accouchement sous X (Gouttenoire, 2016: 112; Mathieu E.; Justin A.), adoption by same-sex couples (Decision No. 2013-669 dc of 17 May 2013: para. 53), and the voice of the child in divorce procedures (Decision No. 2016-739 dc of 17 November 2016: paras. 46–48), as well as to recognise the constitutional protection of the best interests of the child. The Council has also recognised the fundamental principle of the specialisation of juvenile justice as part of the constitutional bloc, using it as a constitutional standard to measure the validity of statutes. An increasing diversity of child-related matters is reaching the Constitutional Council, facilitated by improved accessibility through the qpc procedure.
The following sections discuss the direct constitutional protection of children’s rights under the French Constitution in the areas of juvenile justice and the best interests of the child, which have generated interesting case law. No explicit constitutional provisions refer to either area, but the Council has used various techniques to give them recognition and protection. The Council has eschewed a rights language but this has not diminished the level of protection.
4.3.2 Juvenile Justice
The constitutional rules in relation to juvenile justice are rich (Commentaire, Murielle B.: 15–17; de Montgolfier, 2008). In 2002, the Constitutional Council identified a fundamental principle concerning juvenile justice in French law (principe fondamental reconnu par les lois de la République en matière de justice des mineurs) (Decision No. 2002-461 dc of 29 August 2002; de Montgolfier, 2011; Darsonville, 2012). The principle comprises a cluster of rules that safeguard the protective nature of juvenile justice in France and its predominantly educative purpose (de Montgolfier, 2008: 10).
Like other fundamental principles, this one was developed by the Constitutional Council with reliance on the Preamble to the 1946 Constitution, which refers to such principles without listing them exhaustively (de Montgolfier, 2011: 197). The fundamental principles are not derived from the constitutional texts; they are identified and extracted from the relevant legislation, distilled as general principles and bestowed with constitutional value. To be recognised, a rule must be of fundamental importance; must have been recognised in republican statutes before 1946; and must not have been departed from in legislation prior to 1946 (ibid.: 197–198).
The Council extracted the fundamental principle concerning juvenile justice from three statutes dealing respectively with the age of criminal “majority”, specialised courts for children and educative measures concerning juvenile offenders (Decision No. 2002-461 dc of 29 August 2002: para. 26; de Montgolfier, 2011: 198). The principle has two limbs: the mitigation of children’s criminal liability; and the imperative of pursuing re-education and reform through measures appropriate to the age and personality of juvenile offenders, and applied by specialised professionals or through appropriate proceedings (Decision No. 2002-461 dc of 29 August 2002: para. 26; Commentaire, Murielle B.: 13; de Montgolfier, 2011: 198; Bonfils, 2022: 97). The Council has noted that the principle is limited: it does not require the avoidance of criminal sanctions in favour of purely educative measures and, when necessary, punishment can be applied (Decision No. 2002-461 dc of 29 August 2002: para. 26). The principle does not, therefore, absolve children from criminal responsibility, although it prioritises educative over punitive measures (de Montgolfier, 2011: 198).
A proportionality requirement is built into the principle, with intrusions permissible ‘when necessary’ (Decision No. 2002-461 dc of 29 August 2002: para. 26). A law will pass constitutional muster under this principle if it considers the child’s age, the gravity of the conduct and the child’s criminal record (de Montgolfier, 2011: 202–204). A law is also valid if it does not preclude pursuing the child’s education and reform (de Montgolfier, 2011: 204–206); it preserves judges’ discretion to sanction children differently from adults; and respects the specialisation of juvenile justice (ibid.: 206; Decision No. 2011-635 dc of 4 August 2011: paras. 49–52).
The strength of the protection offered by the principle is variable, depending on the context (Commentaire, Murielle B.; Lazerges, 2008). For example, when legislation introduced minimum sentencing for children in certain situations, or allowed prosecutions of juvenile offenders to be fast-tracked, despite the risk of hampering rehabilitation (Decision No. 2012-272 qpc of 21 September 2012), the Constitutional Council found it consistent with the principle (Decision No. 2007-554 dc of 9 August 2007). Until 2011, whenever the principle was relied on, the legislation was endorsed by the Council (de Montgolfier, 2011: 195) – even when it contained regressive standards. Two decisions in 2011 changed that trend. The Council paired the protection-oriented principle with another fundamental constitutional principle (judicial impartiality) and decided that a juge d’enfants cannot act as both the investigating and the sentencing magistrate when the child is referred to a court for criminal punishment (as opposed to educative measures) (ibid.: 200, referring to Decision No. 2011-147 qpc of 8 July 2011). Further, the Council found that statutory provisions creating correctional tribunals for children with only one member of the three-judge panel being specialised in juvenile justice were contrary to the principle (Decision No. 2011-635 dc of 4 August 2011: paras. 49–52).
Later, in 2016, the Council declared constitutionally invalid the provisions of Ordinance No. 45-174 concerning juvenile justice. These permitted a juge d’enfants to order the immediate imprisonment of a child given a custodial sentence of any duration, although the immediate incarceration could be applied to adults only when sentenced to more than one year in prison (Decision No. 2016-601 qpc of 9 December 2016: paras. 3 and 8–9). The child was thus placed in a more vulnerable procedural position than an adult offender. In 2018, a challenge was mounted to provisions of Ordinance No. 45-174 (as they stood in 1984, the time of the incident) that allowed police to detain child suspects or witnesses for 24 hours without charge, in the same manner as they would detain adults (Murielle B.). Until a 1993 reform, the Ordinance had no provisions in relation to the police detention of minors, which meant that the rules applicable to adults were also applicable to children (Commentaire, Murielle B.: 3). The Council found that by not stating a minimum age at which children could be detained by police and by not according them special protection, the ordinance breached the fundamental principle of juvenile justice (Murielle B.: paras. 15–16). In October 2020, the 1945 ordinance was replaced by Ordinance No. 2019-950, which has been criticised for insufficiently respecting the principle of the specialisation of juvenile justice and potentially conflicting with the crc (Syndicat de la Magistrature, 2015; Défenseur Des Droits, Opinion 20-09 of 1 December 2020). No challenges to the constitutionality of the new legislation have been mounted at the time of writing (March 2023).
In a 2019 decision, the Council declared constitutionally invalid provisions of the criminal code that provided the same procedural guarantees for interviewing, without arresting, children suspected of a crime (audition libre) as it did for adults (Decision No. 2018-762 qpc of 8 February 2019). According to the Council, the absence of special procedural rules for children meant that there were insufficient guarantees to ensure that the child gave genuine consent to being interviewed and made choices consistent with their interests. By not ensuring an effective exercise of the child’s procedural rights, the impugned provisions were contrary to the juvenile justice principle (para. 5).
Therefore, despite the absence of explicit juvenile justice provisions in the Constitution, there is vibrant constitutional jurisprudence in this regard. Although its decisions have not always been favourable to children, the Constitutional Council has established at least some minimum constitutional standards on juvenile justice to which it has remained faithful.
4.3.3 The Best Interests of the Child
Similarly, while the concept of the best interests of the child does not appear in the French constitutional texts, it has been reflected in the constitutional jurisprudence since 2019 and is increasingly used as a standard against which to assess the constitutionality of laws (Adama S.; Decision No. 2019-778 dc of 21 March 2019: paras. 57–62; Decision No. 2019-797 qpc of 26 July 2019 (Unicef France); Justin A.). The concept of the interest of the child was part of French law before the ratification of the crc, but the best interests of the child did not receive explicit statutory recognition (Gouttenoire, 2016: 109) until recently (Ordinance No. 2019-950, articles L311-1 to L311-3, L412-2). The Court of Cassation and the Council of State have, however, absorbed the best interests of the child in their case law through the direct application of article 3(1) of the crc, as discussed above.
The constitutional jurisprudence on the best interests of the child has evolved gradually. A first step was made in 2013, when the Constitutional Council linked the interests of the child to a specific constitutional provision. It then dismissed a challenge against legislation permitting same-sex couples to adopt children, which was argued to be contrary to children’s best interests (Decision No. 2013-669 dc of 17 May 2013: para. 46). The Council held that paragraph 10 of the 1946 Preamble required that adoptions be made in the interests of the child (paras. 53, 54). The challenge was nonetheless dismissed because the legislation provided that adoptions be assessed on the child’s interests. The decision referred to the interest, not the best interests, of the child and seemed confined to family-related matters by the scope of paragraph 10.
The Council first used the phrase “best interest of the child” on its own initiative (Fulchiron, 2019: para. 2). While it is uncertain that it used the concept as a constitutional standard capable of controlling the validity of domestic law (Decision No. 2018-770 dc of 6 September 2018: para. 62), that decision was the precursor of a more dramatic shift.
This results in an obligation of protection of the best interest of the child. This obligation requires that minors present on the national territory benefit from the legal protection attached to their age. It follows that the rules related to determining the age of an individual must be bound by the necessary guarantees in order that minors not be incorrectly considered as adults.
The Council found that the statutory provisions were consistent with the best interests of the child because they contained safeguards, such as the subsidiary nature of the test and the requirement that it be judicially authorised; the consent of the tested person; and the requirement that the test indicates its margin of error (Catto, 2019: 26).
Another 2019 case, Unicef France, concerned legislation enacted in 2018 that allowed fingerprints and photographs of individuals claiming to be unaccompanied minors to be preserved until relevant assistance was provided. Being a minor guarantees more protective treatment, including the prohibition of deportation. Unicef and others challenged the compatibility of the legislation with the constitutional obligation to protect the best interests of the child, contending that, inter alia, the data could be misused for immigration control (para. 2). The Council disagreed that the obligation had been breached, noting that the impugned provisions did not deprive children of protections but rather allowed authorities to establish that their age has not already been evaluated by other authorities (paras. 7–8). It concluded that by seeking to prevent repeated claims for protection by adults claiming to be children, the legislature pursued two legitimate objectives: protecting the best interests of the child and combating illegal migration (para. 9).
Thus, the Council’s recent jurisprudence has transformed the best interests of the child from an invisible constitutional idea into ‘one of the key concepts in constitutionality control’ (Fulchiron, 2019: para. 2 (my translation)). In Adama S., the Council used the best interests of the child of its own accord, which is a far cry from earlier decisions in which it sidelined such arguments (Decision No. 2010-39 qpc of 6 October 2010). The Council recognised the protection of the best interests of the child as an autonomous obligation (Fulchiron, 2019), detached from constitutional obligations in relation to the protection of the family. The foundation of this approach is the expectation that to be constitutionally valid, statutes should provide children with the special treatment and protection required by their vulnerability. In other words, they must not allow children to be ‘unduly treated as adults’ (Adama S.: para. 6 (my translation); Unicef France: para. 3). The Council seems to give the best interests of the child an exclusively protective dimension, which is different from the approach of the crc Committee, which also has an empowerment dimension (crc Committee, 2013).
Although the protection of the best interests of the child is now a constitutional standard, it is not among the most protected rights. Thus, a finding of incompatibility with the constitution can be made only if the Parliament’s balancing of the protection of the best interests of the child with other legitimate values is ‘manifestly disproportionate’ (Justin A.: para. 11). The threshold is therefore high, indicating that the constitutional best interests in France lack an important feature of article 3(1) of the crc: being a ‘primary consideration’. At the same time, the recognition of the best interests of the child as a constitutional value means that its protection may justify limiting the rights of others.
The Council has not yet invalidated any statute for breaching the constitutional requirement to protect the best interests of the child, so it is unclear in what situations it might do so. It is also uncertain whether the Council would use the best interests as a gateway for the protection of other rights of children, as done by the Court of Cassation and the Council of State in their case law on article 3(1) of the crc. The protection paradigm that dominates the Council’s approach (Gelblat and Inghilterra, 2019) might prove to be an obstacle, although the Council did consider the voice of the child in Adama S. when it referred to the consent of the child being required for a radiological bone examination. The Council declared that the protection of the best interests of the child is a ‘constitutional requirement’ rather than a right. Nonetheless, in Adama S. and Unicef France, the Council was invested through a qpc (which is a rights protection mechanism as per art. 61-1 of the 1958 Constitution), suggesting that the best interests of the child have at least a proximate rights nature that enables the Council to decide the matter. The Court and the Council also shun rights terminology in their application of article 3(1) of the crc; this has not diluted the concept or the strength of its protection.
Thus, the dynamic evolution of French constitutional jurisprudence led to the recognition of the constitutional value of the best interests of the child, opening the door for more child-focused constitutional developments. While this is a major step forward, the constitutional best interests lack some of the force of article 3(1): being ‘a primary consideration’ and having an empowerment dimension.
4.4 Conclusions
In a very technical sense, children’s rights are invisible in the French Constitution. Because the French constitutional texts do not explicitly refer to children’s rights, the constitutional protection of those rights is markedly different from other jurisdictions and more difficult to identify. This protection is largely the product of the intricacies of that constitutional system, rather than explicit constitutional texts entrenching children’s rights. Although the textual connection between some child protective principles and the French constitutional provisions is fragile, the constitutional context has permitted the development of relevant constitutional standards. A closer analysis of constitutional texts and jurisprudence suggests therefore that the French Constitution can be included in Tobin’s “special protection” category, while also scoring reasonably well under the O’Mahony typology.
Although this article recognises some children’s rights assets in the French Constitution, it does not argue that this is a model to emulate, given its limitations. For example, in the absence of explicit recognition, the constitutional development of children’s rights has been slow. Developments through case law have been checkered, with courts being generally timid. The existence of multiple legal apexes – Court of Cassation, Council of State and Constitutional Council – that apply different children’s rights frameworks in different legal contexts (the crc and the Constitution) may create inconsistency and uncertainty. Lastly, the lack of explicit constitutional recognition deprives children’s rights of a symbolic political messaging that could strengthen their social, political and legal acceptance.
5 Expanding Children’s Rights Constitutionalism
Typologies such as those developed by Tobin and O’Mahony provide a useful framework for assessing the children’s rights capital of domestic constitutions. Nonetheless, as illustrated in the French case study, they risk masking the full extent of constitutional protections if they are not complemented by further considering the variety of interactions between children’s rights and constitutions. Constitutional typologies based exclusively on the explicit recognition of children’s rights may also sideline those constitutions that serve different functions and may not have human rights protection explicitly at their heart. The latter constitutions cannot be automatically dismissed as ineffective children’s rights constitutions in the absence of a careful assessment of their operation.
Three insights arising from this study can be used to develop further the children’s rights constitutional typologies, and children’s rights constitutionalism more generally.
5.1 Looking beyond Explicit Provisions on Children’s Rights in Domestic Constitutions
Research on the constitutional protection of children’s rights should progress to a new phase that looks beyond the wording of constitutional provisions. As demonstrated by the French case study above, norm-poor constitutions can also provide protection.
A starting point is the potential intersection between children’s rights and constitutional provisions beyond those strictly mentioning children. Tobin and O’Mahony highlighted this when they acknowledged the relevance of constitutional rules regulating the relationship between the crc and French law. This article has shown how such rules have benefited children’s rights. The devolution of powers in the UK is another constitutional peculiarity that has generated opportunities for children’s rights protection (see, generally, Williams, 2015: 53). Unlike the Westminster Parliament, the Parliaments of Wales and Scotland respectively have given some legal effect to the crc within the limits of their devolved powers (the Rights of Children and Young Persons (Wales) Measure 2011 and the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024). This is a constitutionally enabled legal effect which has a constitutional-like scope (i.e. unlike classic Children’s Acts, these legal measures apply across public decision making) within the limits of these legislatures. Whether this amounts to a “true” constitutional protection of children’s rights, and perhaps the more fundamental question of “what amounts to a constitutional protection of children’s rights”, remain matters for another day.2 Here, it suffices to stress that there is a need for further theoretical clarity on what amounts to such constitutional protection, and that domestic constitutional intricacies need close legal analysis for a better understanding of the full spectrum of constitutional protection of children’s rights.
The mechanisms discussed above may seem marginal to children’s rights protection, but the French Constitutional Council demonstrates that much can be achieved even with sparse and remotely relevant constitutional provisions. It is difficult to be comprehensive (and one must avoid being prescriptive) in terms of the constitutional mechanisms that indirectly protect children’s rights. That assessment is best made in the local context with attention to constitutional case law and practice.
To facilitate the identification of child-friendly features of domestic constitutions, it is necessary for children’s rights to be integrated into the mainstream study of constitutionalism. There have already been calls in this regard in relation to children’s rights in general (Brems, Desmet and Vandenhole, 2017). A more deliberate attempt to approach children’s rights as part of the wider constitutional discourse will create opportunities to observe their interaction and ascertain the strengths and weaknesses of a wider range of constitutional mechanisms as tools for children’s rights protection.
The tendency in children’s rights constitutional literature and practice is to identify one successful mechanism within a jurisdiction and inadvertently sideline other opportunities. In South Africa, for example, this successful mechanism is section 28 of the Constitution, while self-execution of the crc (permissible under the Constitution) is largely ignored and the child-focused interpretation of general rights lags (Couzens, forthcoming). This results in a failure to capitalise on potentially relevant constitutional provisions and jurisprudence. Further, it prevents or delays child-oriented interpretations of general constitutional provisions that may have a transformational effect in relation to children and other vulnerable groups.
5.2 Considering the Diversity of Constitutional Sources within Each Legal System
The French case study demonstrates the importance of considering the diverse sources of constitutional law within each legal system. The UK and New Zealand, for example, have constitutional sources as varied as centuries-old legal instruments, human rights statutes and constitutional conventions. Sweden has multiple constitutional sources with children’s rights capabilities (Mattsson, 2019). The children’s rights potential of these sources should be examined even if they do not mention children or their rights. The constitutional order of the European states has been deeply impacted by EU law and the European Convention on Human Rights; focusing on the wording of the domestic constitutions provides only a partial view of the constitutional protection of children’s rights.
5.3 Looking beyond Western, Liberal-Inspired Constitutions
France is a Western liberal democracy with a long rights tradition that is strengthened by its membership to a regional system of human rights protection. A human rights-accommodating constitution – with generous rules concerning the relationship between international treaties and the domestic law, complemented by strong and independent courts and a human rights-friendly constitutional body – has compensated, to some extent, for the scarcity of child rights-specific provisions.
Many children, however, live in legal systems that lack such features. It is necessary to engage with the constitutions of those systems with a mind open to the possibility that they too may provide some protection to children’s rights. In China and Vietnam, for example, the legislature and the executive shape the constitutional protection of children’s rights (Naftali, 2019; Hoang, Hang and Mai, 2020). Features such as constitutional values and aspirations, principles of good governance, the division of power between levels of government and political accountability mechanisms may carry some children’s rights protection potential that is worth investigating.
Enlarging the constitutional playing field should not compromise the assessment of constitutional protections. If, upon analysis, a constitution is a brick wall for children’s rights, that must be acknowledged, while also highlighting that there may be legal systems where children’s rights can develop through legislation and policies even where constitutional recognition is lacking. Constitutions that operate as instruments to distribute power or to organise the state are less likely to provide meaningful protection than constitutions that contain rights or good governance principles. However, evaluative judgments of such constitutions should be based not only on their wording but also on their application and a consideration of the strengths and weaknesses of the norms, institutions, traditions and conventions of the respective domestic legal systems.
Including non-liberal constitutions in discussions about constitutionalism and children’s rights should not be taken as a rights-washing of rights-hostile political regimes. It should instead be seen as an attempt to broaden perspectives on the relationship between children’s rights and constitutions. At a minimum, it can be a critical exercise that may question liberal constitutionalism as the ideal form of children’s rights constitutionalism. The reality is that we cannot decide what constitutional model is good for children’s rights protection when we are ignorant of many existing models. It is to be expected that most constitutions will have something relevant or positive, however small, for children. If this tentative insight is verified, the next question would be whether children’s rights constitutionalism is distinct from general constitutionalism and should develop its own theoretical infrastructure.
Whatever approach is taken to the further development of constitutionalism and children’s rights, it is important that the theoretical models are not so narrow as to exclude constitutions that provide protection that is not easily cognisable.
Acknowledgements
I thank Professor Catherine Renshaw, Professor Azadeh Dastyari and Dr Shreeya Smith, all of the Western Sydney School of Law, for their constructive comments on an earlier draft, and Ms Michelle Nichols for editing this article. Thanks are also due to the anonymous reviewers for their helpful comments. All mistakes are mine.
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