Summary: General overview of Denmark's national legal provisions on children's rights, including guidance on how to conduct further research.
National laws on children's rights
Status of the CRC in national law
The Danish government elected not to incorporate the CRC into domestic law following a review of the matter in 2001. Nonetheless, Danish courts must still consider all binding international conventions, including the CRC, where there is an apparent conflict with relevant national law. When reviewing such conflicts, two principles apply: (1) The courts will adopt the interpretation of national law that is most consistent with Denmark's international obligations, and (2) Judicial authorities will act on the assumption that Parliament did not intend to legislate against Denmark's international obligations.
Constitution: The Constitution of Denmark contains one specific reference to the rights of the child as distinct from the rights of other citizens, Section 76, which states that: “All children of school age shall be entitled to free instruction in elementary schools. Where parents provide instruction equal to the elementary school standard, however, they shall not be obliged to have their children taught in such institutions.”
Legislation: There is no comprehensive children’s act in Danish legislation. Rather, provisions relevant to children are found throughout various laws. Notably, a large number of consolidated acts have been developed to cover specific areas of the law, including the Danish Penal Code (Straffeloven) and the Administration of Justice Act (Retsplejeloven). Other relevant legislation includes, but is by no means limited to:
Act No. 460 of 7 Jun. 2001- the Children Act (Børneloven)
Act No. 441 of 31 May 2000 amending the Criminal Code and the Administration of Justice Act (combating the sexual abuse of children)
Act No. 499 of 6 Jun. 2007 on Parental Responsibility
Act No. 542 of 6 Jun. 2007 on Care Placement Reform
Act on Custody and Access of 1 Jan. 2002
Act No. 166 of 14 Mar. 2001 on the Educational Environment of Pupils and Students
Act No. 482 of 1 Jul. 1998 on the Legal Rights of Patients (concerning the age of consent in medical matters and involvement of children in decision-making)
Act. No. 458 of 12 Jun. 1996 amending the Working Environment Act (on young persons' work)
Act No. 411 of 26 Jun. 1998 amending the Act on Measures to Combat Alcohol Abuse (prohibition of retail sale of alcohol to children below 15 years of age)
Executive Order No. 218 of 27 Mar. 2001 on the Processing of Personal Data in Central Criminal Records (preventing those convicted of crimes against children from working with children)
The Danish Parliament (Folketinget) maintains a website in Danish (http://www.ft.dk/?/samling/20051/menu/00000005.htm) with links to the most recent draft and approved legislation (http://www.ft.dk/Dokumenter.aspx). The Parliament also offers limited information in English (http://www.ft.dk/English.aspx). In addition, the Globalex initiative at New York University has published a guide to legal research in Denmark (http://www.nyulawglobal.org/globalex/denmark1.htm), and the U.S. Library of Congress has compiled a selection of relevant links (http://www.loc.gov/law/help/guide/nations/denmark.php). A variety of websites provide access to Danish legal documents, including the Constitution (English: http://www.servat.unibe.ch/icl/da00000_.html; Danish: https://www.retsinformation.dk/Forms/R0710.aspx?id=45902) and statutes (English: http://www.juraportal.dk/links/010/010/040/020/?lang=en; Danish: https://www.lovtidende.dk/).
Please contact CRIN if you are aware of any cases in national courts that reference the Convention on the Rights of the Child.
Case Law Research
The Danish court system has a Danish-language website (http://www.domstol.dk/Pages/default.aspx), with some basic information in English (http://www.domstol.dk/om/otherlanguages/english/Pages/default.aspx). There is no official body responsible for reporting case law in Denmark, but Juraportal provides links to a number of databases of edited case reports (http://www.juraportal.dk/?lang=en).
Compliance with the CRC
The Committee on the Rights of the Child has been largely complimentary about Denmark’s implementation of the principles and provisions of the Convention in domestic law. Direct incorporation of the CRC into national law, however, has been an ongoing matter of concern with the Committee on the Rights of the Child, and the Committee has repeatedly recommended that the government fully incorporate the Convention into domestic law. In its 2011 Concluding Observations, the Committee also expressed concern “that there is no legislative framework of a more comprehensive nature covering the full scope of the Convention” and that “child rights legislation in Greenland and the Faroe Islands has yet to be harmonized with the principles and provisions of the Convention. ”
In depth analysis:
The Committee on the Rights of the Child has been particularly critical of reforms to juvenile justice under the Administration of Justice Act which have, among other things, permitted the pre-trial detention of children between the ages of 14 and 17 years for up to eight months and tolerated the solitary confinement of children for up to four weeks. Other reforms in the area that have caused the Committee to express concern include the lowering the age of criminal responsibility from 15 to 14 years and the abolition of the maximum prison sentence of eight years for cases involving children.
With regards to violence and abuse, the Committee has expressed concern about the continuing lawfulness of corporal punishment in the home and alternative care settings in the Faroe Islands. Moreover, though a Government Circular states that such punishment should not be used in schools, there is no explicit prohibition in law. The Committee has also recommended a strengthening of laws relating to child trafficking, noting that “Denmark continues to be a significant transit destination country for child victims of trafficking related crimes, including forced child prostitution and labour”.
The Committee has also raised the issue of child poverty, specifically raising the issue of the so-called “300-hours rule” (as of 2008, the 450-hours rule), which has the effect of limiting benefits to married couples who have not individually worked the required number of hours. The Committee expressed concern that this rule will have the effect of disproportionately harming women of ethnic minorities “with serious repercussions for their children”.
Current legal reform projects
As of the date of the publication of the 2010 report to the Committee, some of the family law reforms that have taken place in Denmark had not applied to Greenland. The Danish government has expressed its intention to continue reform in this area of the law with respect to Greenland.