CRINMAIL 21:
The Case Law of the CRC
In this issue:
CRIN REPORT: The Case Law of the CRC
Inside and outside the courtroom, the Convention on the Rights of the Child has proved a uniquely powerful tool for advancing children’s rights. Its monitoring body, the Committee on the Rights of the Child, has for nearly two decades reviewed States Parties’ efforts to implement the Convention, looking at whether national laws, policies and practices fall in line with children’s rights. Following a successful advocacy campaign, this group of experts will also soon preside over a complaints mechanism through which children can bring violations of their rights to international attention.
The new complaints mechanism promises to meaningfully expand children’s access to justice, but legal claims involving children’s rights are already being heard in courts around the world. The Convention has been cited, referenced and mentioned through national, regional and international justice systems worldwide since it came into force.
With this in mind, CRIN launched the “CRC in Court” case law database in 2009, the fruits of which have often featured in this CRINMAIL. We aimed to highlight important decisions from across the globe that cite, quote and discuss the Convention. This month, we publish a report that analyses our findings so far, to draw out trends in the way the Convention has been used by judicial decision-makers and to paint a clearer picture of how claims involving the CRC have fared in the courtroom. In doing so, we aim not only to look at the results of individual cases, but to look too at the role children have played in bringing or pursuing cases.
Ultimately, this report and this project explore the potential for advancing children’s rights through legal advocacy. Above all else, we hope that reviewing the case law on the Convention on the Rights of the Child provides inspiration to expand its application in all manner of judicial proceedings. The CRC is very much a living instrument, and national, regional and international courts offer a strong, effective means to ensure that children's rights progress from laudable aspirations to binding obligations.
What did we find?
In the analysis of 132 decisions in the CRC in Court Case Law database, from between 1993 and 2012, what became immediately obvious was that the Convention has a truly global jurisprudence. Countries on all inhabited continents have cited the CRC, and though this is far from a guarantee that judges in all countries are willing to consider children’s rights in reaching their decisions, it does indicate a certain openness to the Convention as a legal instrument.
Direct effect or interpretive guidance?
The force the CRC holds in national law often dictates how judicial decision-makers view and use the Convention in legal disputes. Perhaps the most fundamental difference between the ways that courts have been willing to address the CRC was between those who were willing to apply the Convention directly, and those who saw it as a source of interpretive guidance.
The difference between these approaches can be epitomised with two contrasting examples. The Bulgarian Supreme Administrative Court has explicitly identified the Convention as part of domestic law and held that it must “prevail over those norms of national legislation that contradict [it]” (read more here), while the House of Lords in the United Kingdom has maintained that “when two interpretations of … regulations are possible, the interpretation chosen should be that which better complies with the commitment to the welfare of children which this country has made by ratifying the United Nations Convention on the rights of the Child” (see here). This distinction does not cover the full range of ways in which judicial decision-makers can make use of the Convention, but demonstrates the two archetypes which are at work.
Of these two approaches, the use of the Convention as interpretive guidance is far more common in our sample than those directly applying the Convention: only 13 per cent of cases we reviewed directly applied the Convention.
Which rights are being invoked?
Of the 41 substantive articles of the CRC, our research has shown that some rights are represented significantly more than others. The best interests of the child (article 3) in particular was by far the most cited of the Convention rights, though all of the so-called “guiding principles” (best interests, non-discrimination, right to life, survival and development, respect for the views of the child) were also referenced more than the median number of times, a finding that might have been predicted given the overarching effect of these rights and their applicability to a range of situations.
Of the more factually specific provisions, the prohibition on torture and deprivation of liberty (article 37) featured most prominently in our sample alongside that of the provisions on protection from abuse and neglect (article 19). This finding may well be reflective of the types of situations that give rise to court cases and the provision of legal representation: namely criminal and child protection proceedings.
More generally, in the cases sampled, children’s civil and political rights (e.g. freedom of expression and freedom of thought, conscience and religion) were represented much less frequently than those related to economic, social and cultural rights (e.g. health, education and social security).
Looking at the articles cited does not give a full picture, but when the cases are classified by the topics covered, it becomes much more clear what the focus of the cases is. Juvenile justice was the most common topic followed by immigration, child custody and the public protection of children.
Who is using the CRC?
What is immediately obvious from looking at the case law is the small proportion of those cases which are brought by a child or partially brought by a child. Of the 132 cases covered only 19 fall into this category. This is not surprising given the considerable barriers faced by children in accessing justice, whether through a lack of information, lack of legal remedies or the lack of resources to pursue a claim. These are all problems that CRIN will be looking to combat through the Legal Status of the Child project CRIN launched last month.
What are the outcomes?
In addition to looking at the ways the CRC has been used, the final outcomes were also analysed in terms of their effect and their consistency with the Convention. The result gives cause for cautious optimism. From our sample, the vast majority (89 per cent) were compatible with CRIN’s interpretation of the Convention, an interpretation informed by the Committee’s Observations, Recommendations and General Comments. However, the fact that a decision includes a reference to the CRC at all indicates a judge’s openness to examining the Convention, which may well lead to decisions being more consistent with CRC provisions. Because our database only includes cases that ultimately cite the CRC and not cases where the CRC was raised and dismissed, it is difficult to draw conclusions about judges’ overall attitudes towards the Convention. The cases where the CRC was raised but not considered are near impossible to measure.
Conclusion
While the decisions included in the database do not represent an accurate cross-section of the ways that judges have used the CRC in reaching their decisions, they do show a wide range of approaches to the Convention. Though decisions presented in the database are more likely to be consistent with the CRC than those not included, it is inspiring that the Convention has been used positively to advance children’s rights in so many different courts and across such an expansive range of subject matter.
This brings us to the ultimate aim of the CRC in Court project: to draw attention to the developing case law of the CRC. We sincerely hope that this review proves informative and helpful and that those who read it will consider finding a way to use the CRC in their own legal advocacy work. While there are no guarantees that it will bring immediate and profound advances in children’s rights, raising the profile of the CRC in legal proceedings is in many ways an achievement in and of itself.
News and Cases
Juvenile justice: the detention and criminalisation of children in the United Kingdom, Israel and the Philippines
The United Kingdom admitted in January to detaining children in prisons with adults during 2011. Five people under the age of 18 had been authorised to be transferred to adult facilities throughout the year, decisions which would violate the Convention on the Rights of the Child if not taken in the best interests of the child. Speaking for the Howard League for Penal reform, Andrew Neilson said, “[t]he reason we have a youth justice system is that children have different needs to adults and must therefore be treated differently … Detaining children in adult prisons makes them more vulnerable and puts them at greater risk of abuse and exploitation”. Read more here.
This news comes as figures are released in the United Kingdom on the increase of incidents of self-harm by children held in custody in England and Wales as well as the latest information on the 20 children who have died in custody during 2011-12.
Meanwhile, Defence for Children International (DCI) have reported on the inappropriate use of detention facilities for children, specifically the use of solitary confinement for children in Israeli prisons run by the security firm, G4S. The latest report focussed on the cases of six Palestinian boys who had been detained in the al-Jalame detention centre for between four and 29 days. This news follows DCI’s publication of information related to 59 cases of solitary confinement of children since the organisation began documenting such cases in 2008.
UN human rights mechanisms have been widely critical of the use of, and conditions in, detention facilities for Palestinian children. Speaking out on the practice, UN Special Rapporteur on the Situation of human rights in the West Bank and Gaza, Richard Falk, said, “[p]rison conditions are often deplorable, requiring children to sleep on the floor or on a concrete bed in a windowless cell”. Meanwhile, Juan Mendez, UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has expressed concern that solitary confinement “can amount to torture or cruel, inhuman or degrading treatment or punishment when used as a punishment, during pretrial detention, indefinitely or for a prolonged period, for persons with mental disabilities or juveniles”.
This news on the treatment of children in detention emerges as the Philippines considers bills that would lower the minimum age of criminal responsibility (MACR) from 15 to 12. The UN Committee on the Rights of the Child previously welcomed the reforms in 2009 which raised the MACR to its current level, but only three years later, the State is set to take a step backwards. Speaking for a group of organisations campaigning on the issue, Roldan Gonzales claimed that “[l]owering the minimum age of criminal responsibility will only increase the number of children undergoing criminal proceedings under conditions that violate their rights”. Read more here.
Segregation of Roma children in schools
The European Court of Human Rights (ECHR) ruled again in January on the discriminatory educational segregation of children from Roma backgrounds. Last month’s case revolved around the allegations of two Roma men who had been placed in “remedial schools” outside of mainstream education as children, that Hungary operated policies that indirectly discriminated against Roma children. Ruling for the applicants, the ECHR held that they “were placed in schools for children where they were isolated from pupils from the wider population. As a consequence they received an education which did not offer the necessary guarantees stemming from the positive obligations of the State to undo a history of racial segregation in special schools”.
The case ultimately turned on whether the State had put in place adequate safeguards to take account of the special needs of Roma children. The two men, however, had sought to challenge the tests used to determine whether children are diagnosed as having special educational needs on the basis that they were ethnically prejudicial. The court was unable to hear arguments related to the inadequacy of the tests on the basis that the national courts had not had the opportunity to rule on that point, a decision which leaves some of the wider issues undecided.
This decision follows that of a regional court in Slovakia in October 2012, which found the practice of teaching Roma children in separate classrooms within a school contravened national anti-discrimination laws and follows on from the ECHR’s own case law with regards to the Czech Republic and Croatia.
Court rules on the criminalisation of consensual sexual activity between children
The High Court of South Africa ruled in January that laws that make consensual sexual activity between teenagers a crime are unconstitutional. The Criminal Law (Sexual Offences and Related Matters) Amendment Act criminalised sexual activity between children between the ages of 12 and 16, regardless of consent, from cuddling, to kissing and sexual intercourse.
The presiding judge, Pierre Rabie, held that to subject "intimate personal relationships to the coercive force of the criminal law" is to "insert state control into the most intimate area of adolescents’ lives", and that any legislation that did so should be "carefully and narrowly crafted to infringe on these vital constitutional rights as little as possible". The organisations involved in the case welcomed the ruling as a recognition of children's right to privacy, to dignity and to participate in decisions about sexuality. The decision now awaits the approval of the Constitutional Court.
A similar law in India that seeks to protect children from sexual abuse, also criminalises all sexual activity until the age of 18, even if consensual. In doing so, one human rights defender has claimed that the legislation will essentially regulate sexual activity of minors, and criminalise those who have sex. Reflecting on the probable reasoning behind this policy, another activist says “[p]eople try to occupy a conservative moral high ground, but the reality is very different.”
War crimes news
A great deal of news has emerged so far this year on war crimes trials, particularly with regards to the most serious crimes against children. From the opening of investigations in Mali by the International Criminal Court to sentencing by national courts in Bangladesh, the news covers the full ambit of war crimes litigation. See the links below for the latest news, and look out for next weeks war crimes trial special Children in Court CRINMAIL.
THE LAST WORD
This month a particularly virulent Bill came to CRIN’s attention which would serve to revictimise women and girls who have been raped. House Bill 206 seeks to criminalise those who terminate a pregnancy following rape on the basis that an abortion would amount to “tampering with evidence”. The offence, which would be punishable with a prison term of up to three years, would, according to one commentator, force victims of rape “to become incubators of evidence for the state”.
Read more here.
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