CRINMAIL 20:
The legal status of the child
In this issue:
Legal status of the child
In the first Children in Court CRINMAIL of the new year we launch a new collaborative project which seeks to establish “the legal status of the child” in national law. With this information we intend to highlight the ways that national legal systems can be used to combat violations of children’s rights, and the ways that children can use the law to assert their own rights. Where legal systems are designed in ways that make it difficult or impossible to combat rights abuses, we intend too to identify where the law falls short.
The focus is on legal remedies as the most direct means of challenging rights violations, but a means that requires specialist knowledge and expertise. By carrying out this research we hope to help children, their families and NGOs engage with their national legal system to challenge children’s rights violations.
What do we mean by the legal status of the child?
First, what is the status of the Convention on the Rights of the Child (CRC) in national law. By this we don’t only mean to draw up a list of which countries have ratified the Convention, but to look at its place in the national legal hierarchy: has it been incorporated, can the courts use it, and if so, to what effect? This project will build on our database of case law in which the CRC has been used and our wiki project to give a global overview of how the Convention has been implemented in national legal systems.
Second, we mean to look at the legal paths open to children to combat violations of their rights: whether children can bring cases in their own name and what legal aid and assistance is available. For example, is legal aid available in all types of proceedings or only in certain settings, must the child meet certain criteria in order to be eligible or is aid available for all potential rights violations.
Third, what means are there to challenge cases before national courts, what can the courts review, and what remedies are available. Included here are not only the jurisdictions in which children’s rights violations may be raised, but what powers the court has to address those violations, whether group litigation is possible and whether and how NGOs and other third parties can intervene.
Finally, we will be looking at the practical considerations in challenging violations of children’s rights. Many of these considerations will turn on what financial resources are available in order to bring a case, including whether legal aid or pro-bono legal assistance is available, but also whether there are time limits involved in bringing a case. Whether children are able to give evidence, and under what conditions, will also be key practical considerations in bringing a case to challenge a violation of that child’s rights.
Why now?
In the past much of our work has focussed on international mechanisms for addressing human rights, CRIN was actively involved in the campaign for a complaints mechanisms for the CRC, but international mechanisms are of no use if domestic legal systems are not effectively navigated.
The complaints mechanisms for the CRC (OP3) has been adopted and will come into force when 10 states have ratified the treaty, after which it will be possible for people in those countries which have ratified to bring complaints of children’s rights violations to the Committee on the Rights of the Child. As with the other Treaty Body complaints procedures, OP3 requires complainants to “exhaust domestic remedies”, which requires knowledge of how to bring a case in national courts and where to look for help and advice. We hope that this project will help those involved in advocacy to better pursue domestic legal remedies.
Examples
These reports will be published both in editable form on the Child Rights Wiki, to help keep the information up to date, and in completed downloadable form through the CRIN website. We have prepared three sample reports to launch the project and demonstrate how these reports will look, and what information should be included:
- Bangladesh- download
- England (UK)- download
- Kenya- download / editable wiki version
Legal research guides
To help those who may not have experience in legal research, we will also be producing guides on how to carry out such research. These reports include information such as how to locate up to date legislation and case law, as well as where to find other useful legal resources on children’s rights.
See examples here:
- Bangladesh
- England
- Kenya
How can people contribute?
Local NGOs and lawyers are the best source for information of this type. By filling in this questionnaire on the legal status of the child in your country, you will be sharing valuable information that will be used to help enforce children’s rights.
In the forthcoming year we will be contacting pro-bono lawyers and partners working nationally to build up a global picture of “the legal status of the child”, but if you or your organisation would like to participate by completing a questionnaire for one or more countries, please contact us at [email protected].
Resources
The legal status of the child questionnaire is the blank questionnaire which will be completed for each country or separate jurisdiction within a country.
The legal status of the child research guide includes details of the information to be included and advice on where that information can be found.
The model legal status of the child briefing sets out the standards set by the Convention on the Rights of the Child and related international legal norms with regards to the questionnaire.
The legal research questionnaire is a blank questionnaire to be completed for each country or separate jurisdiction within a country.
Legal Assistance toolkit- 2nd Edition
With the launch of this new project, we have taken the opportunity to update our Legal Assistance toolkit.
CRIN believes that legal systems must take special care to respect the rights of all children they encounter. Legal systems can be immensely confusing and difficult if not impossible to navigate for children, especially without the help of a legal professional. Legal assistance provides children the means to understand legal proceedings, to defend their rights, and to make their voices heard. It is a necessary component of access to justice for children, and without it, it is difficult to see how children's rights can be truly respected and fulfilled.
With this in mind, recognising that legal assistance for children must not be viewed as a luxury or a privilege; rather, it must be recognised as a human right. Despite this, given the often high costs of legal services, finding legal assistance can be a complicated and challenging endeavour. This toolkit is designed to explain the ways that legal assistance can be obtained free of charge for children and children's rights organisations, to review the international standards that underlie children's right to legal assistance, and to clarify the different types of legal assistance that may be appropriate across the various contexts in which children interact with the legal system.
CRIN first launched the legal assistance toolkit in June 2012, hoping to inspire children and children's rights organisations to seek legal assistance where children's rights have been violated. Equally, we hoped that it would draw the attention of lawyers, judges and government officials to the urgent need to expand legal assistance programmes for children and organisations that advocate on their behalf. Ultimately, we believe that respecting children's right to legal assistance is a critical first step if we are to work towards guaranteeing all children's rights. With this aim in mind, we are re-launching an updated version of the toolkit.
- Download the new version of the toolkit here.
- See also the Child Friendly Justice and Children’s Rights toolkit here.
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