Children’s Rights


OVERVIEW

Children are entitled to the same human rights and fundamental freedoms as all individuals, but, like other particularly vulnerable groups such as women and indigenous people, children have been given special status and protection within the United Nations framework and in regional human rights treaties. These treaties create positive obligations of States to ensure the protection of children. Violations of children’s human rights by State actors are considered particularly grave.

Legal Protections

The following instruments specifically address the special protections owed to children:

The special protections afforded to a child will depend on which treaties have been ratified by the State actor and whether the victim or advocate is engaging with the United Nations system or a regional human rights system.

The United Nations Convention on the Rights of the Child (CRC) is the most comprehensive treaty on the rights of the child, and defines children in Article 1 as “every human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier.”

The CRC focuses on four aspects of children’s rights: (1) participation by children in decisions affecting them; (2) protection of children against discrimination, neglect and exploitation; (3) prevention of harm to children; and (4) provision for children’s basic needs.

Areas of special concern with respect to the rights of children include: (1) the right to freedom from sexual exploitation, (2) child labor, (3) children in armed conflict, (4) education, and (5) children within the context of criminal law.

Sexual Exploitation  

The second the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography requires States to ensure that certain acts against children are criminalized, and obligates States to prosecute or extradite offenders within their jurisdiction.

Child Labor

Child labor issues are most comprehensively addressed by International Labor Organization (ILO) Conventions. International Labor Organization Minimum Age Convention (ILO 138) stipulates that the minimum age for employment is generally 15 years, although developing countries may initially specify a minimum age of 14 years. For employment under specified circumstances (e.g., in the case of health hazards), the minimum age is 18 years. See International Labor Organization Worst Forms of Child Labor Convention, 1999 (ILO 182).

Children in Armed Conflict (and Applicability of International Humanitarian Law)

Recruitment of children for armed forces violates international humanitarian law under the Geneva Conventions, which are designed to limit the effects of armed conflict and also contain specific provisions regarding States’ obligations to protect and care for children in situations of armed conflict.

While the CRC forbids recruitment of children below 15 years for the armed forces, Article 77 of Protocol I to the Geneva Conventions of 1949 provides protection against recruitment of children between 15 and 17 years of age in international armed conflicts.

The first Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict raises the minimum age of individuals taking part in armed conflict to 18 and includes a unique provision regulating the acts of non-State actors, stipulating that non-State forces should not recruit persons under 18.

Juvenile Justice

Although the age of criminal responsibility varies widely among countries, international human rights law has made it clear that the best interests of the child are paramount, even in the context of children in conflict with the law. General Comment 10 to the CRC further outlines special considerations applicable to juveniles within a State’s justice system. For example, children must be granted criminal procedures taking into account their age and comprehension of their situation, and children who are convicted of criminal offenses must be separated from adults and their interests as children must be taken into account in setting their conditions of detention.

Under no circumstances should individuals be sentenced to the death penalty or to juvenile life without parole for offenses they committed as children. See UN Convention on the Rights of the Child, art. 37; International Covenant on Civil and Political Rights, art. 6(5); Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 68; American Convention on Human Rights, art. 4(5); Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty; IACHR, Domingues v. United States, Case 12.285, Report No. 62/02, 22 October 2002; UN General Assembly, Resolution 40/33, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules“), UN Doc. A/RES/40/33, 29 November 1985; UN General Assembly, Resolution 45/113, UN Rules for the Protection of Juveniles Deprived of their Liberty, UN Doc. A/RES/45/113, 14 December 1990.

ENFORCEMENT

Within the universal system, States’ compliance with their obligations related to children’s rights may be monitored through the Universal Periodic Review, special procedures, and treaty bodies. Specifically, Committee on the Rights of the Child reviews State reports on their implementation of the CRC and its two optional protocols and has the competence to hear individual complaints beginning in April 2014, when the Third Optional Protocol to the CRC enters into force. Enforcement also can occur through the country visits and reporting performed by the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography and by the Special Representative of the Secretary General for Children and Armed Conflict.

The International Labor Organization (ILO) has a supervisory system to ensure the compliance of Member States with the standards it develops. There is also a complaint procedure under which parties may file complaints against States for failure to comply with ratified ILO standards.

The regional human rights commissions and courts, including the European Court of Human Rights, the Inter-American Court of Human Rights, the Inter-American Commission of Human Rights, and the African Court of Human Rights, evaluate individual complaints alleging violations of the regional human rights treaties, which include provisions protecting the rights of children.

The Inter-American Commission has established a Rapporteurship on the Rights of the Child, to promote and improve respect for the human rights of children and juveniles in the region. The Council of Europe Commissioner for Human Rights maintains a special thematic focus on children’s rights.

Additionally, the African Committee of Experts on the Rights and Welfare of the Child receives and evaluates State reports on implementation of the African Charter on the Rights and Welfare of the Child.

SELECTED CASE LAW

Protecting Children’s Lives and Physical Integrity 

  • The Inter-American Court has emphasized that violations of a child’s human rights, including their rights to life, freedom from torture and other cruel, degrading or unusual treatment are particularly grave, including in times of armed conflict. See I/A Court H.R., Mapiripán Massacre v. Colombia. Merits, Reparations and Costs. Judgment of 15 September 2005. Series C No. 134. The European Court of Human Rights has reached similar conclusions. See ECtHR, Okkalı v. Turkey, no. 52067/99, ECHR 2006, Judgment of 17 October 2006; ECtHR, Stoica v. Romania, no. 42722/02, ECHR 2008, Judgment of 4 March 2008.
  • Failure to investigate such abuses may give rise to violations of the child’s and family’s rights. In Leydi Dayan Sánchez v. Colombia, Report No. 43/08, 23 July 2008, the Inter-American Commission considered a case in which a young girl was shot and killed by military personnel when she ran across the street, finding that the killing itself and the refusal to investigate the killing after it occurred violated the family’s human rights and the deceased’s human rights, including her rights as a child. See also I/A Ct. H.R., Case of the “Street Children ” (Villagran-Morales et al.) v. Guatemala. Judgment of May 26, 2001. Series C No. 77, in which the Inter-American Court of Human Rights found that Guatemala had violated international human rights law by failing to investigate the abduction, torture and murder of five street children. The Court noted that there was evidence of systematic aggression by Guatemalan security forced against street children. In evaluating allegations of torture, the court took the victims’ ages into consideration, and emphasized the lack of explanation for the wounds suffered by the victims. It also considered the anguish of family members and noted that States violate the rights of family members when they refuse to investigate disappearances of close family members.
  • States are obligated under international human rights law to protect children and other vulnerable individuals from ill-treatment. Such protection requires States to adequately deter private actions violating their rights. See ECtHR, A. and Others v. United Kingdom [GC], no. 3455/05, ECHR 2009, Judgment of 4 February 2009, finding that the United Kingdom had violated article 3 of the European Convention on Human Rights by failing to protect a 9 year old from his step-father’s physical punishments where English law provided deference for “reasonable punishment”. See also ECtHRZ and Others v. United Kingdom,  no. 29392/95, ECHR 2001, Judgment of 4 April 2001; E. and Others v. United Kingdom, no. 33218/96, ECHR 2002, Judgment of 26 November 2002; ECtHR, Kontrovà v. Slovakia,  no. 7510/04, ECHR 2007, Judgment of 31 May 2007.
  • Similarly, the European Court of Human Rights found that Romania violated the minor applicants’ human rights by failing to investigate and prosecute violent sex crimes committed against the child in C.A.S. and C.S. v. Romania, application no. 26692/05, 20 March 2012.

Armed Conflict

  • In Victor Hugo Maciel v. Paraguay, Report No. 85/09, August 6, 2009, the Inter-American Commission determined that the Paraguayan State violated Victor Hugo Maciel’s right to special protection as a child by recruiting him for military service as a fifteen-year-old, against the will of his father and the mother. His family pursued their claim after he died in service.
  • In Molina Theissen v. Guatemala, Judgment of May 4, 2004, (Ser. C) No. 106 (2004), the Inter-American Court of Human Rights found that Guatemala had violated its international obligations in connection with the forced disappearance of a child victim by members of the Guatemalan Army.

Child Labor

  • In response to a complaint alleging systemic and widespread violations in Myanmar (Burma), the International Labour Organization issued a Report of the Commission on Forced Labor in Myanmar, confirming that forced labor was utilized across Myanmar for public purposes, including military activities, and for private benefit. It further found that men, women and children, in particular members of minority ethnic and religious groups, were all victims of forced labor, and of physical and sexual abuse. See Report of the Commission of Inquiry appointed under Article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29). Geneva, 2 July 1998.

Criminal Law & Juvenile Justice

  • The Human Rights Committee has determined that children who commit criminal offenses under the age of 18, and those whose age cannot be confirmed as over 18, may not be sentenced to the death penalty. C. Johnson v. Jamaica (592/1994), ICCPR, A/54/40 vol. II (20 October 1998); Baroy v. The Philippines (1045/2002), ICCPR, A/59/40 vol. II (31 October 2003). The Inter-American Commission reached a similar conclusion in Markkey Patterson v. United States, Report No. 25/05 (March 7, 2005).
  • The Inter-American Commission on Human Rights has ruled admissible a petition regarding the United States’ practice of sentencing children to juvenile life without parole (JLWOP), finding that the factual allegations, if proven, could constitute a prima facie violation of the Convention. Juvenile Offenders Sentenced to Life Imprisonment Without Parole, Petition 161-06, Report No. 18/12 (March, 20 2012).
  • In Assenov v. Bulgaria, no. 90/1997/874/1086, Judgment of 28 October 1998, the European Court of Human Rights ruled that it is more than usually important for the authorities to display special diligence in ensuring that child criminal suspects are brought to trial within a reasonable time. The prosecution in that case detained Assenov on remand for 2 years, despite Bulgarian legislation providing that children should be detained on remand only in exceptional cases. See also Selçuk v. Turkey, no. 21768/02, Judgment of 10 January 2006; Güveç v. Turkey, no. 70337/01, Judgment of 20 January 2009.
  • In S.C. v. the United Kingdom, no. 60958/00, Judgment of 30 September 2003, the European Court of Human Rights held special tribunals or criminal procedures may be necessary on account of the minor’s intellectual age, comprehension of the proceedings, or of the nature of the penalty he faced. T. v. United Kingdom, no. 24724/94 & V. v. United Kingdom, application no. 24888/94, Judgment of 16 December 1999.
  • The Inter-American Court has found violations of the rights of the child where the State fails to provide due process, a fair trial and humane treatment to arrested minors. Bulacio v. Argentina, Judgment of Sept. 18, 2003, (Ser. C) No. 100 (2008); Gomez Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, (Ser. C) No. 110 (2004).
  • The Inter-American Court of Human Rights has held that the State is obligated to provide the greatest care possible to all children in conflict with the law at all stages of criminal proceedings and detention. Juvenile Re-education Institute v. Paraguay, Judgment of September 2, 2012, (Ser. C) No. 112. In defining ‘cruel’ or ‘degrading’ treatment, the fact that a minor is being dealt with must be considered. It also observed that the legality of detaining a minor depends on the use of detention as an exceptional measure and one that is applied for the shortest possible period of time. The Court also found that the State is responsible for establishing a specific system for dealing with children in conflict with the law, which must include certain characteristics such as the possibility of dealing with children without resorting to judicial proceedings, and if judicial proceedings are necessary, assessing the psychological well-being of the child during the proceedings, controlling the way in which the child’s statement is taken, and regulate publicity of the trial; should use its discretion in the different stages of the trial and phases of the administration of juvenile justice to taken age into account.

Birth out of Wedlock and Adoption

  • The European Court of Human Rights in the Marckx case ruled that unequal treatment of marital and non-marital children can violate article 8 (private and family life) of the European Convention. Marckx v. Belgium, no. 6833/74, Judgment of 13 June 1979. See also Case of Inze v. Austria, no. 8695/79, Judgment of 28 October 1987. The UN Human Rights Committee has also issued a conclusion in which it found that a child may not be denied State benefits from a deceased parent based solely upon the marital status of his or her parents. Derksen v. The Netherlands (976/2001), ICCPR, A/59/40 vol. II (1 April 2004).
  • The European Court of Human Rights has also found that adopted children may not be discriminated against in inheritance law. Pla and Puncernau v. Andorra, no. 69498/01, Judgment of 13 July 2004.

Parental Rights

  • Hendriks v. The Netherlands (201/1985), ICCPR, A/43/40 (27 July 1988) 230 examined a father’s rights under the International Covenant for Civil and Political Rights (ICCPR) with respect to access to his son after his divorce. In examining the question, the Committee recognized that (1) the family is protected under the ICCPR, (2) States should take precautions to ensure equal rights for each spouse upon the dissolution of a marriage and (3) children should be protected by the State. The Committee noted that although divorce legally ends a marriage, barring exceptional circumstances, it cannot dissolve the parental bond with a child. However, in any case where there is a conflict among the rights and principles outlined above, the priority is given to the child’s interests. The Committee determined that each State is competent to determine parental rights as long as it applies the principles as outlined above. See also Santacana v. Spain (417/1990), ICCPR, A/49/40 vol. II (15 July 1994) 101 (CCPR/C/51/D/417/1990), reaching a similar conclusion and noting that although a ‘family’ is defined broadly, “some minimal requirements for the existence of a family are … necessary, such as life together, economic ties, a regular and intense relationship, etc.”
  • However, in Fei v. Colombia (514/1992), ICCPR, A/50/40 vol. II (4 April 1995), the Committee clarified that the unilateral opposition of one parent to his or her child’s contact with the other parent is insufficient to extinguish the non-custodial parent’s rights to contact with their child. Instead, the parent challenging such contact must provide evidence indicating that it is in the child’s best interests to deny access. The State’s failure to require such evidence is a violation of the ICCPR. Juan Asensi Martínez v. Paraguay, Communication No. 1407/2005. See also J. P. L. v. France (472/1991), ICCPR, A/51/40 vol. II (26 October 1995), finding that adequate evidence to find that exceptional circumstances in support of severing contact between a father and his children existed.
  • Children may be removed from their parents’ care entirely if the State determines, using adequate procedure, that removal is in the best interests of the children. Buckle v. New Zealand (858/1999), ICCPR, A/56/40 vol. II (25 October 2000).
  • Likewise, the European Court of Human Rights has acknowledged that States have retained different traditions and approaches to separating children from their parents, and has granted States some deference in their consideration of the best interests of the child. When considering the best interests of the child, the Court places great weight on the exercise of the child’s right to freedom of expression and the wishes of the child. Bronda v. Italy, no. 22430/93, Judgment of 9 June 1998.

Education

  • Although a State is not legally obligated under European law to provide a particular system of education, where a State does provide education, it must not discriminate in providing access to that education. Belgian Linguistics Case, Application nos. 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64, Judgment of 23 July 1968. See also Timishev v. Russia, nos. 55762/00 and 55974/00, Judgment of 13 December 2005, holding that children could not be excluded from school in Russia because of their Chechen father’s failure to register as a resident.
  • In D.H. and Others v. the Czech Republic, no. 57325/00, Judgment of 13 November 2007, the European Court found indirect discrimination and a violation of the applicants’ rights to education after determining that a psychological test used to assign children to special schools for children with disabilities within a two-tiered educational system had a disproportionate impact on the Roma minority. The overrepresentation of Roma children in these schools gave rise to a presumption of discrimination, which the State could not overcome without showing the placements were due to objective, justifiable reasons unrelated to the children’s ethnicity. The tests were not adjusted to account for the linguistic and other differences among children. See also Oršuš and Others v. Croatia, no. 15766/03, Judgment of 16 March 2010, and Sampanis and Others v. Greece, no. 32526/05, Judgment of 5 June 2008.
  • In Campbell and Cosens v. The United Kingdom, no. 7511/76, 25 February 1982, the European Court of Human Rights found that that corporal punishment in schools violated parents’ right to ensure the education of their children “in conformity with their … philosophical convictions.” Because one child was suspended as a result of his parents’ unwillingness to accept the practice of corporal punishment, the Court also found that his right to an education had been violated. While the court found that corporal punishment may in some circumstances constitute torture, inhuman or degrading treatment, and the threat of such punishment might be such a violation, it was not in this case. See also Tyrer v. the United Kingdom, no. 5856/72, Judgment of 25 April 1978, holding that striking a student with a birch as punishment amounted to “institutionalized violence” in violation of Article 3, but noting that in order for punishment to be “degrading” and in breach of Article 3, the humiliation must attain a particular level of severity other than that usual element of humiliation inherent in any punishment. Factors such as the nature and context of the punishment, the manner and method of its execution, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim must all be taken into account. See also Costello-Roberts v. the United Kingdom, no. 89/1991/341/414, Judgment of 23 February 1993.
  • In Mental Disability Advocacy Center (MDAC) v. Bulgaria, Complaint No. 41/2007, 3 June 2008, the European Committee of Social Rights found evidence that the Bulgarian government failed to provide education for up to 3,000 children with intellectual disabilities living in so-called ‘homes for mentally disabled children’ across Bulgaria. The determination relied on the disparity among groups in attaining education. Only 6.2 percent of children in ‘homes for mentally disabled children’ received an education, whereas primary school attendance for Bulgarian children in general was approximately 94 percent, amounting to government-sanctioned segregation and discrimination.

Right to Name and Legal Identity

  • In Mónaco et al. v. Argentina (400/1990), ICCPR, A/50/40 vol. II (3 April 1995), the Human Rights Committee found that Argentina’s delay of 10 years in clarifying the legal identity of a minor whose parents had died and providing access to her surviving grandmother violated articles 17, 23 and 24 of the ICCPR.
  • In Odièvre v. France, no. 42326/98, Judgment of 13 February 2003, Pascale Odièvre, who had been adopted, alleged that the fact that her birth had been kept secret at her mother’s request made it impossible for her to find her origins in violation of her rights under Articles 8 and 14. In finding that there had been no violation, the European Court of Human Rights distinguished adoption cases from paternity cases and found that France had not overstepped its margin of appreciation in balancing “the issue of access to information about one’s origins…and the choices of the natural parents, the existing family ties and the adoptive parents”.
  • In Mikulic’v. Croatia, the European Court held that the State had a duty to establish alternative means to enable an independent authority to determine paternity claims speedily and that that the State’s failure to do so violated the minor child’s rights because she remained in a state of prolonged uncertainty as to her personal identity. See also Jäggi v. Switzerland, no. 58757/00, 13 July 2006.
  • In Gelman v. Uruguay, Judgment of February 24, 2011, (Ser C) No. 221, the Inter-American Court of Human Rights found the State responsible for violating the victim’s rights to juridical personality, life, humane treatment, personal liberty, a family, a name, nationality and the rights of the child, based upon the “suppression and substitution of [her] identity” since the time State agents took her from her mother as an infant. In the context of “Operation Condor” during the country’s military dictatorship, the State had kidnapped the babies of detained and disappeared opposition members; the babies were then raised by other families and never informed of their true parentage.

Family Life in the Immigration Context

  • In Winata v. Australia (930/2000), ICCPR, A/56/40 vol. II (26 July 2001), the Human Rights Committee held that in extraordinary circumstances, a State party must demonstrate factors justifying the removal of persons within its jurisdiction that go beyond a simple enforcement of its immigration law in order to avoid a characterization of arbitrariness. States have significant, but not unlimited discretion to enforce their immigration policies and to require departure of unlawfully present persons. However, where the child has been raised entirely in the State as a lawful citizen, and his or her parents have resided in the State for an extended duration of time, removal of the parents from the State without particularized justification is arbitrary interference with the family under the ICCPR. Baban et al. v. Australia (1014/2001), ICCPR, A/58/40 vol. II (6 August 2003). But see Sahid v. New Zealand (893/1999), ICCPR, A/58/40 vol. II (28 March 2003), finding that the State need not identify exceptional factors in support of deportation where a grandparent’s deportation would leave a grandchild within the State with his parents, and Rajan v. New Zealand (820/1998), ICCPR, A/58/40 vol. II (6 August 2003), finding that deportation of parents based in part on fraudulent misrepresentations in their immigration documents did not violate the rights of their children under the circumstances.
  • In Stewart v. Canada, Communication No. 538/1993, U.N. Doc. CCPR/C/58/D/538/1993 (1996), the Human Rights Committee noted that, under international law, a State’s right to expel a non-citizen resident for a legitimate State interest must be balanced against due consideration in for a deportee’s family connections and the hardship the deportation may have on the family. The balancing test must be flexible to the specific facts of each individual case. In Wayne Smith, Hugo Armendariz al. v. United States, Case 12.562, Report No. 81/10 (July 12, 2010), the Inter-American Commission reached a similar conclusion. The applicants, lawful permanent residents of the United States for 25 and 35 years, were deported for non-violent criminal offenses that had occurred many years prior without any opportunity to present evidence of their rehabilitation, their family situation, and the equities in their favor. The Commission held that the State must provide an opportunity for the applicant to present a humanitarian defense to deportation or to have their rights to family duly considered before deportation. It must also consider the best interests of the children involved.

ADDITIONAL RESOURCES

Useful online sources on the rights of children include the following:

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