Child Rights - Background

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• Background
• The role of the Committee on the Rights of the Child
• CROC in Australia
• Reporting Obligations
• Australia's Compliance

What is CROC?

The United Nations Convention on the Rights of the Child (CROC) gives children (anyone under 18 years)[1] a comprehensive set of rights.[2] The idea that children have rights is still foreign to many adults. This is hardly surprising because they are likely to have grown up in an era wh en children were expected to 'do as they were told' and to 'be seen and not heard'.

This view of children as being under the control of their parents, carers and teachers was reflected in laws which can be traced back to Roman Law. The notion of patria potestas was custom during this period, where the Roman father’s words were literally the law.[3] Thus the father had absolute legal control over the lives of his children. In schools, teachers were seen as acting in place of parents and they acquired parental powers of discipline and control over children. in school.

It was only in the 1980s that two landmark events changed the notion of children being under the control and authority of adults.

The first was the English House of Lords case of Gillick[4] in 1985, in which it was held that children are not, in the eyes of the law, incompetent and powerless beings. The highest Court in England decided that children are legally entitled in law to make decisions in matters which affect them if they are able to understand the implications of the decision and to weigh up the risks and benefits that are likely to flow from it. Gillick recognises that children vary in their intellectual development and maturity and that their capacity to make decisions affecting their own lives gradually increases as they acquire understanding and maturity. The Courts have pointed out that just because a parent or teacher might make a different decision does not mean that the child lacks the capacity to decide the matter. In Australia, ‘Marion’s case’[5] deals with the changing nature of parental rights and recognising increased abilities of children as they acquire understanding and maturity.

The second landmark event was the coming into force of CROC in 1990. It is a human rights treaty developed under the auspices of the United Nations and passed by the UN General Assembly in November 1989. It contains 54 separate Articles and two Optional Protocols. Thirty-nine of the 54 Articles are state-specific rights and 15 are machinery provisions. The latter deal with interpretation, and the obligations undertaken by ratifying countries in respect of dissemination of information, reporting and translation etc.

What is new about CROC?

CROC is not the first United Nations Convention to speak of the rights of children. There was a Geneva Declaration on the Rights of the Child in 1924 and this was followed by a Declaration on the Rights of the Child proclaimed by the General Assembly of the UN in November 1959. The 1959 Declaration (like its earlier counterpart) was a short document containing only ten principles, most of which were adapted from the earlier Universal Declaration of Human Rights of 1948. The 1959 Declaration included in its Preamble the notable principle 'Mankind owes the child the best it has to give'.

A Convention differs from a Declaration in that individual countries can choose to ratify a Convention giving it some force in international law and some status within the country concerned. Arguably, Article 12 is the most innovative provision included in CROC, as it gives children the right to express their views freely in all matters that affect them and to have their views considered by the decision-maker. The earlier Declarations of Children's Rights had a welfare focus. CROC thus represents a major shift towards children having autonomous rights.

Who wrote CROC?

CROC was drafted by a working group which met every three years, for more than a decade, to debate the rights to be conferred on children by the Convention. All countries represented at the United Nations were entitled to participate in the working group sessions. Australia was an energetic contributor to these debates, with former Chief Human Rights and Equal Opportunity Commissioner, Brian Burdekin, playing an active part. Where delegates could not agree on the wording of a particular Article, smaller groups were established to try to come to an agreed wording. Australia chaired some of these smaller working groups. If consensus on controversial issues proved impossible, a vote was taken. The final session of the working group was marked by exchanges between delegates pressing a particular point of view. The issues of inter-country adoption and the age at which children might serve in the military forces provoked debate.

What age group does CROC apply to?

'Child' is defined in Article 1 of CROC as 'every human being below the age of 18 years'. For Convention purposes, a person ceases to be a child on his or her 18th birthday. There was considerable debate, during development, as to whether the rights (including the right to life in Article 16) should apply to the unborn child. The Preamble refers to the need for protection for the child 'before and after birth', but Article 1 gives no guidance whether an unborn child falls within the definition of a 'human being'.