2 THE
UNITED NATIONS
CONVENTION ON
THE RIGHTS
OF THE
CHILD
12. The United Nations Convention on the Rights
of the Child (UNCRC) is the most universally accepted of all UN
human rights instruments and the most comprehensive in its promotion
of children's rights—civil, political, economic, social
and cultural—informing other human rights standards through
a framework of state responsibilities applicable to all children
within signatory states' jurisdictions.
13. To assist in the interpretation of the rights
under the Convention, the UN Committee on the Rights of the Child,
a body of independent experts which monitors implementation of
the UNCRC, issues documents known as General Comments. These have
dealt with such issues as adolescent health (General Comment 4)
and the right of children to be heard (General Comment 12).
14. States Parties are also required to report periodically
to the Committee. After consideration of a State party's report
the Committee issues observations and recommendations. Concluding
observations refer both to positive aspects of a State's implementation
of the UNCRC and areas where the Committee recommends that further
action needs to be taken by the State. The most recent set of
Concluding Observations on the UK were issued by the UN Committee
in October 2008.[12]
| KEY UNCRC ARTICLES
Article 1 (Definition of the child): A 'child' as a person below the age of 18, unless the laws of a particular country set the legal age for adulthood to be younger. The Committee on the Rights of the Child, the monitoring body for the Convention, has encouraged States to review the age of majority if it is set below 18 and to increase the level of protection for all children under 18.
Article 2 (Non-discrimination): The Convention applies to all children without discrimination. No child should be treated unfairly on any basis.
Article 3 (Best interests of the child): The best interests of children must be a primary concern in making decisions that may affect them. All relevant adults should do what is best for children. When decisions are made, the impact on the child must be considered. This particularly applies to budgetary authorities, policymakers and legislators.
Article 4 (Protection of rights): Governments have a responsibility to take all available measures to make sure children's rights are respected, protected and fulfilled. This includes assessing domestic legislation and practice to ensure that the minimum standards set by the Convention are being met. Article 41 of the Convention points out the when a country already has higher legal standards than those seen in the Convention, the higher standards always prevail.
Article 12 (Respect for the views of the child): A child capable of forming his or her own views will be given the right to express those views freely in all matters affecting the child, with those views being given due weight in accordance with their age and maturity. In particular, a child will be provided with the opportunity to be heard in any judicial or administrative proceedings affecting them, either directly, or through representatives.
Article 19 (Protection from all forms of violence): Children have the right to be protected from being hurt or mistreated, physically or mentally.
Article 20 (Children deprived of family environment): Children who cannot be looked after by their own family have a right to special care and must be looked after properly, by people who respect their ethnic group, religion, culture and language.
Article 27 (Standards of living): Children have the right to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.
Article 28 (Right to education): Children have the right to free primary education. Secondary education should be available to every child, and higher education should be accessible on the basis of capacity by every appropriate means.
Article 29 (Goals of education): Children's education should develop each child's personality, talents and abilities to the fullest. It should encourage children to respect others, human rights and their own and other cultures. It should also help them learn to live peacefully, protect the environment and respect other people. It should also develop respect for the child's parents and for their cultural identity and values.
Article 39 (Rehabilitation of child victims): Children who have been neglected, abused or exploited should receive special help to recover and reintegrate into society. Particular attention should be paid to restoring the health, self-respect and dignity of the child.
|
15. Perhaps most significantly, the Convention specifies
(Article 3) that the best interests of the child are to be the
primary consideration in all decisions concerning children; that
where a child is capable of forming his or her own views, those
views should be given due weight in accordance with the age and
maturity of the child; and that children capable of forming their
own views have the right to participate in any proceedings that
concern them (Article 12).
16. Although not directly incorporated into domestic
law, the principles of the UNCRC guide domestic law and practice,
and are often referred to by the courts when interpreting obligations
imposed by human rights and other legislation. Since November
2008, when the United Kingdom removed a reservation to allow it
not to apply the Convention to decisions concerning children and
young people subject to immigration control, the Government has
accepted that all children, irrespective of their immigration
status, must enjoy all the rights and protections of the UNCRC
without discrimination, as specified under Article 2 of the Convention.
17. Indeed, in addition to its status as an international
treaty which is legally binding on the UK, the Convention also
has a degree of more direct legal effect in the UK's legal system,
through the Human Rights Act 1998. The European Court of Human
Rights has begun to take note of the Convention in the context
of its interpretation of the European Convention on Human Rights.[13]
The UK Courts are required by the Human Rights Act 1998 to take
account of ECtHR jurisprudence and the Government is bound by
its judgments in cases against the UK. The Supreme Court has held,
for example, that "it is clear from the recent jurisprudence
that the Strasbourg Court will expect national authorities to
apply Article 3(1) of UNCRC and treat the best interests of a
child as a 'primary consideration.'"[14]
When considering whether a proposed deportation is a disproportionate
interference with the right to respect for private and family
life under Article 8 ECHR, therefore, the best interests of the
child must be considered first.
18. Moreover, while the Convention has not been incorporated
into UK law and is therefore not directly justiciable in UK courts—that
is to say, an individual cannot go to a UK court to complain about
a breach of any of the rights in the Convention—the conclusions
and recommendations of the UN Committee, while strictly speaking
not legally binding, do provide an authoritative interpretation
of the individual treaty obligations which are themselves legally
binding on the UK.
12 CRC/C/GBR/CO/4 http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf
Back
13
See e.g. Neulinger and Shuruk v Switzerland (App. No. 41615/07,
6 July 2010) at para. 135 ('The Court notes that there is currently
a broad consensus-including in international law-in support of
the idea that in all decisions concerning children, their best
interests must be paramount.') Back
14
ZH (Tanzania) v Secretary of State for the Home Department
[2011] UKSC 4, para [25]. Back
|
