BELGIUM: National Laws

Summary: General overview of Belgium's national legal provisions on children's rights, including guidance on how to conduct further research.

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National laws on children's rights

Status of the CRC in National Law
Although the Belgian government has reported that certain articles of the CRC are directly applicable in Belgian law (notably article 12), the Convention as a whole is not considered to have direct effect. Rather, it seems that to a large extent the CRC is seen as a statement of principle to be met in national law rather than an enforceable law in and of itself; for example, when cited in court, the CRC seems to be used to bolster a case rather than directly underlying claims. Therefore, harmonisation of domestic law and the Convention is largely reliant upon the passage of topic specific legislation.

Constitution: The Belgian Constitution has only one explicit reference to the rights of children; Article 22bis provides that “each child is entitled to have his or her moral, physical, mental and sexual integrity respected” and that “[t]he law, federate law or rule referred to in Article 134 guarantees the protection of this right”.

Legislation: Belgian implementation of the CRC is complicated by the nature of the Belgian federal system. The top layer of the federal system is comprised of the federal State and the federated entities (the Communities and Regions). While the federal State has retained powers in the area of justice, the Communities have responsibility for young people and education, so the federal State and the Communities are both sources of relevant law.

Therefore, there is no consolidated children's act in Belgian law, and provisions pertaining to children are found amongst Federal and Community law as well as within the Civil Code and Criminal Code. Statutes relating to children include, but are by no means limited to:

• The Protection of Young Persons Act of 8^th Apr. 1965

• The three Acts of 13^th Apr. 1995 concerning trafficking in human beings, child pornography and the sexual abuse of minors

• The Act of 24^th Apr. 2003 reforming adoption

• The Act of 18^th Jul. 2006 promoting the shared custody of children whose parents have separated

• The Act of 30^th Jun. 1994 amending the Judicial Code to take account of art. 12 of the CRC

• The Act of 1^st Jul. 2006 amending the Civil Code relating to the establishment of filiation and to its effects (addressing the age at which the child's consent to recognition must be obtained)

• The Decree of 29^th Mar. 2002 on Flemish Youth Policy (and corresponding Youth Policy Plans published within 18 months of a new Parliament)

• The Decree of 14^th Feb. 2003 on Local Youth and Youth Work Policy

• Decree of 20^th Mar. 1995 on Youth Assistance

Legal Research
The Belgian Parliament maintains a website available in Dutch, French, German and English (http://www.fed-parl.be/index.html). The Catholic University of Leuven has written a comprehensive guide to legal research and the Belgian legal system (http://www.llrx.com/features/belgian.htm); and belgiumlex (http://www.belgiumlex.be/), the World Legal Information Institute (http://www.worldlii.org/be/), and the U.S. Library of Congress (http://www.loc.gov/law/help/guide/nations/belgium.php)offer portals to a number or relevant legal research and government websites, although many of these links are available only in French and Dutch. The Belgian Constitution is also available online in English, Dutch, French and German (http://www.legislationline.org/documents/section/constitutions/country/41).

Case Law
CRC Jurisprudence
Cases that have cited the CRC include Public Prosecutor V LC [1^st Mar. 2002] Court of Appeal of Brussels regarding the protection of children whose parents have diplomatic immunity.

Case Law Research
The Council of State offers a searchable database of judicial decisions in English, French, Flemish, and German (http://www.raadvst-consetat.be/).

Compliance with the CRC
While the Committee on the Rights of the Child has been generally positive with regards to Belgian progress in achieving harmonisation between the Convention and domestic law, there is concern that legislative developments varied among the three Belgian Communities. In its 2010 Concluding Observations, the Committee specifically singled out the German-language community, noting "that legislative development in [that Community] has not kept pace with development in the other two communities". The Committee has also commented that there is a lack of national co-ordination regarding the implementation of the Convention. With regards to education, the Committee expressed concern regarding the discrimination faced by children from poor backgrounds and those of foreign origins.

In depth analysis:
Juvenile justice is an area of Belgian law that remains at variance with the Convention in a number of regards. It is possible for children between the ages of 16 and 18 years to be tried in adult courts, and to be detained in adult prisons. The Committee on the Rights of the Child has noted a failure to respect the right of children in conflict with the law to legal counsel, and the use of detention as other than a method of last resort.

Child poverty is also an issue that arises clearly from the observations of the Committee. Issues such as the lack of a prohibition of parents using their children for begging, the tendency to treat absenteeism in schools as a matter for the judicial authorities and the levying of school fees in contravention of the free schools provisions of the national Constitution were all identified by the Committee as part of a network of reasons tending to maintain child poverty and social alienation. The Committee recommended that the State conduct "an in-depth analysis of the complex determinants of poverty affecting children" and adopt a "multidimensional approach to strengthening the system of family benefits and child allowances" with the aim of tackling child poverty.

National policy with regards to unaccompanied children was also highlighted by the Committee in its most recent observations. While the Committee was critical of the States policy of denying unaccompanied children access to reception centres unless they had filed asylum claims, they expressed concern about the State's refusal to guarantee stateless children residency.

Current legal reform projects
In the latest State report to the CRC, the French Community put forward “[t]he possibility of making it compulsory to produce a child impact study (regarding the rights of the child) for all draft legislative texts” as an example of future reform that is being considered.