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Summary: General overview of Tuvalu'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 International treaties, including the Convention on the Rights of the Child, must be incorporated into national law in order to be applied directly. However, Tuvalu's courts can and have used the provisions of the Convention interpret national legislation. Where domestic legislation is ambiguous, the courts will prefer an interpretation that is consistent with the Convention, but where national law clearly conflicts with the Convention, the domestic legislation must be applied. Constitution: Part II of the Constitution of Tuvalu (“the Bill of Rights”) contains a number of rights provisions that apply regardless of age, but only a small number that make specific reference to the rights of children: Article 9(4): provides that where consent is required under the the Bill of Rights, the consent of parents is required in place of that of a person under the age of 18 years. Article 17(2)(a): includes within the permitted grounds for deprivation of liberty, such deprivation by a parent, teacher, guardian or court, for the education, welfare or proper discipline of a person under the age of 18 years. Article 23(3): entitles religious communities to establish and maintain educational establishments subject to maintenance of prescribed educational standards. No one attending such a place of education can be required to receive religious instruction or to take part in a religious ceremony or observance other than his or her own, without his or her consent. Legislation: there is no consolidated or comprehensive Children's Act in Tuvaluan law, rather provisions of particular relevance to children can be found in a number of Acts. Legislation of particular relevance to children includes, but is by no means limited to: The Penal Code The Prisons Act The Island Courts Act The Education (Compulsory Education) Order 1984 The Adoption of Children Act The Employment Act The Custody of Children Act The Citizenship Act The Births, Deaths and Marriages Registration Act The Marriage Act The Mental Treatment Act Legal Research The Constitution of Tuvalu is available through the Tuvalu Islands website (http://www.tuvaluislands.com/const_tuvalu.htm) and domestic legislation is available through the Tuvalu Legislation website (http://tuvalu-legislation.tv/cms/index.php/legislation/current/all-alphabetical.html) and through the Pacific Legal Information Institute (http://www.paclii.org/tv/indices/legis/Tuvalu_Laws_1990A.htm). In addition, the GlobaLex project at New York University has published a guide to legal research in the South Pacific (http://www.nyulawglobal.org/Globalex/South_Pacific_Law1.htm) and the World Legal Information Institute (http://www.worldlii.org/tv/) and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/tuvalu.php) both provide access to a selection of legal and governmental resources. All resources are available in English. Case Law CRC Jurisprudence The Convention on the Rights of the Child has been cited n domestic courts, including in relation to delays in the juvenile justice system (http://www.crin.org/Law/instrument.asp?InstID=1534). Case Law Research The Pacific Legal Information Institute provides access to a selection of the decisions of the High Court of Tuvalu (http://www.paclii.org/tv/cases/TVHC/). Compliance with the CRC In its Concluding Observations of 2013, the Committee on the Rights of the child noted as positive the adoption of several legal measures to safeguard the rights of children, as well as the formulation of the Family Protection and Domestic Violence Bill. However, the Committee expressed concern that a comprehensive review of all laws relating to children had not been undertaken and that the enactment of the Family Protection and Domestic Violence Bill had been delayed. The Committee urged the State to undertake a comprehensive review of its legislation to ensure compliance with the principles and provisions of the Convention and to expedite the enactment of relevant legislation. In depth analysis Among the areas of national law at greatest divergence from the standards set by the Convention, was that related to violence against and sexual abuse of children. The Committee expressed concern that legislation on sexual abuse did not protect all children under 18 years; the definition of sexual abuse was so narrow as to only cover cases of penile penetration; the Penal Code permitted the prosecution of a girl aged 15 years or above for incest if she is regarded as having consented to the act; sexual offences against boys were not recognised; marital rape was not criminalised; mandatory prosecution or minimum sentences for sexual assault were lacking and no specific provisions prohibited child sexual abuse imagery. The Committee urged the State to review its legislation with regards to sexual abuse to ensure that it protects all children under the age of 18 and to eliminate barriers that prevent child victims of sexual violence from reporting incidents to relevant authorities. Juvenile justice was also an area of particular concern for the Committee, specifically with regards to the low minimum age of criminal responsibility; the lack of a minimum age for deprivation of liberty; the provisions within the Island Courts Act and the Penal Code which permit caning as a sentence for child offenders; the lack of legislative measures to prohibit sentencing of children to life imprisonment; the incarceration of a person under a sentence of life imprisonment for an offence committed while under the age of 18; and the lack of legislation regulating how police should deal with child offenders. The Committee urged the State to amend its juvenile justice system to bring it into compliance with the Convention, including by raising the minimum age of criminal responsibility, repeal provisions that permit life imprisonment and corporal punishment for offences committed by children, and by considering parole for the child serving a life sentence in prison. The Committee also raised a number of areas of national law which were lacking appropriate legislation to give effect to the Convention. In particular, the Committee noted that there was no comprehensive legislation and policy to protect the rights of children with disabilities; that there were insufficient laws, regulations and policies to protect children in migration situations in the context of natural hazardous situations; and that there was no monitoring mechanisms to follow-up adoptions. Current legal reform projects At the time of the State's 2013 report to the Committee on the Rights of the Child, the Family Protection and Domestic Violence Bill was under consideration as was the Adoption of Children (Amendment) Bill 2012.