The Rights of the Child in a Changing World

This general report gives an overview of the implementation of children’s rights in the 21 Member States of the UN Convention on the Rights of the Child that submitted their papers to the 2015 Congress of the International Academy of Comparative Law. The questions encompassed by the questionnaire refer, first of all, to the definition of the child in the respective national laws, as well as to the most important rights of the child, such as the implementation of the best interest principle, the right of the child to know about his/her origin, the right of the child to be heard (right to participation), the right of the child to give medical consent, the right of the child in the field of employment, prohibition of physical punishment and protection of the child through the deprivation of parental rights and in the case of intercountry adoption. The research presented in the national reports shows that there is a great degree of heterogeneity and asymmetry among the countries regarding not only the understanding of the rights of the child but also the level of their implementation in national laws. Most countries have adapted their legislation to incorporate the new rights of the child foreseen by the Convention, thereby significantly improving the legal position of children. However, both in these countries and in those that have not satisfactorily implemented the Convention, there remains room for a further promotion of children’s rights. Yet many factors influence a further enhancement of the children’s legal status in the world. Among them, human resources and political commitment are as important as those related to economic development, the wealth of certain countries, mentality, culture, religion and the general level of education. Nevertheless, the legal landscape of the regulation of the rights of the child has seen positive developments with a clear mandate for nations to keep a vigilant watch over the status of children’s rights and act together individually and within the UN framework to ensure their continued legal protection.

This paper examines Australia’s efforts in implementation of provisions in the Convention that relate specifically to family relations and family law matters and the results that have been achieved. It recognises that whilst Australia has achieved some milestones in implementing the Convention in this area of law and policy, a more consistent, harmonised and sustained effort towards its full implementation is needed consistent with Australia’s standing as one of the most developed countries in the world.

Canada is a federation and its constitution establishes a division of powers between the federal Parliament and the provincial/territorial legislatures. The power to conclude international treaties remains with Central government, but their implementation ought to respect the division of powers. Cooperation between all levels of government is thus essential to maximize the implementation of treaties such as the UN Convention on the rights of the child [Convention]. This report emphasizes how the Convention is dealt with at the national level and in the province of Quebec. Canada ratified the Convention in 1991, but never adopted legislation to implement it, leaving the Convention without direct application in Canada. The Convention is nevertheless recognized and used in the interpretation of Canadian law and courts have given it as much effect as possible. Also, the Canadian Charter of Human Rights applies to all persons, including children. This chapter articulates how Canada is regulating various issues associated with the child and how it respects the Convention. It assesses measures taken by Canada relating to the best interest of the child, the right to participate in issues affecting him/her and those dealing with the right of the child to consent to medical treatment. This chapter also identifies where and how the protection of the rights of the child could be enhanced, for example with the right to know one’s origins of adoptees and medically assisted conceived children or respecting physical punishment.

The Republic of Croatia is an independent and sovereign state since 1991. The Marriage and Family Relations Act of 1978, amended in 1989, was the source of family law until 1998 when the Family Act of 1998 entered into force. Legislative activities continued resulting the adoption of a new Family Act in 2003 and later amendments of 2004, 2007, 2011 and 2013. The Ministry of Social Policy and Youth launched in August 2013 public debate on the draft of the (new) Family Act. On the 1st of July 2013, Croatia joined the EU. This report is a summary overview of the positive legislation dealing with the rights of the children, and it is guided by the proposed questionnaire. Due to the continuous modifications in the legislation, there is a lack of a proper “feedback” from jurisprudence and theory, as a proof of how the new legal standards are really implemented in the practice. The rights of the child are primarily determined by the international legal standards, especially the UN Convention on the Rights of the Child of 1989. It is an evident progress especially through the active role of the Ombudsperson for Children in the Republic of Croatia, in the public life and in the detailed reports, which are annually presented in the Croatian Parliament.

Denmark has ratified the UN Convention on the Rights of the Child, and the Convention is thus binding upon the state of Denmark. In a national perspective, the principles contained in the Convention have almost only been addressed by the Danish legislature and not by the courts or administrative authorities. The Convention was not considered a priority in 2001, when it was being discussed which human rights conventions to incorporate into national Danish law. The general opinion was that the legal substance of the Convention was too unclear at the time. The incorporation is currently under (renewed) consideration by the legislature. Effectively, this means that presently children’s rights and the principle of the best interest of the child are not laid down as general principles but rather regulated differently in different fields of Danish law.

This contribution addresses the rights of the child in various legal matters in response to a questionnaire drafted for the XIXth International Congress of Comparative Law held in Vienna in July 2014.

Les droits de l’enfant garantis par la Convention internationale des droits de l’enfant sont globalement consacrés en droit français comme l’a reconnu le Comité internationale des droits de l’enfant. Toutefois certaines questions sont susceptibles de provoquer des interrogations sur l’effectivité de certains droits de l’enfant. Il en va ainsi de l’accouchement dans le secret ou l’absence de législation spécifique relative aux châtiments corporels.

After the Federal Government has withdrawn its previous reservations to the UN Convention on the Rights of the Child (CRC) in 2010, the Convention and its protocols now fully apply in Germany. Since that time, a remarkable progress in legislation and jurisprudence toward a more child-friendly legal environment can be ascertained. This, of course, does not mean that the German legal order, by now, entirely complies or should even fully comply with all legally nonbinding recommendations of the CRC Committee. On the other hand, there is no doubt about the supplementary constitutional role which human rights instruments, including the CRC, increasingly play in Germany. In some cases they have already led to a shift of views by granting more liberties and more participation rights to children.

Safeguarding the rights of the child is a most difficult task mainly due to the particular sensitivity of the subject. Being the basic legal text of protection, the 1989 Convention on the Rights of the Child provides for the filing of periodic state reports on the due implementation measures, aiming at the promotion and protection of children’s rights.

Having ratified the Convention in 1992, Greece adopted a series of domestic laws to implement the respective provisions. However, state practice was not in full accordance with the provisions, mainly due to lack of financial resources and coordinated action between state and non-state actors. The present report comprises a thorough analysis of the regulatory framework regarding the status of children in Greece, the level of protection awarded, and the relevant practice of state organs, based on the notion of the “best interests of the child.” The relevant data is provided by the state reports submitted to the Committee on the Rights of the Child and the Parallel Report of the Greek Ombudsman; these indicate the appropriate steps to be taken toward effective protection.

Human rights begin with children rights. There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they grow up in peace. It is a call to all people to respect human rights of children and to reaffirm their commitment to children.

The United Nations Convention on the Rights of the Child, 1989 (CRC), represents a turning point in the international movement on behalf of child rights. This comprehensive document contains a set of universal legal standards or norms for the protection and well-being of children. Children have a right to be provided with certain services ranging from a name and nationality to health care and education. They have a right to be protected from certain acts, such as torture, exploitation, abuse, arbitrary detention and unwarranted removal from parental care, and children have the right to participate in the decisions affecting their lives.

India has the largest child population in the world. Children under the age of 18 years constitute 41 % of the total population of the country. India’s approach to protection and promotion of human rights of children derives from the Constitution of India, which provides for affirmative action in favour of children. It directs the state to ensure that children are not abused and are given opportunities and facilities to develop in a healthy manner in conditions of freedom and dignity. India ratified the CRC in 1992 and enacted various laws in conformity of the CRC for the protection of children. In this paper a sincere attempt is made to examine and assess the implementation of the CRC in Indian legal system.

Children are the most vulnerable among social groups. Observing their human rights is a great responsibility of governments, societies, and families. The International Convention on the Rights of the Child (CRC) is the first legally binding international instrument for the protection of children’s rights. On September 5, 1991, the Islamic Republic of Iran signed the Convention on the Rights of the Child, and the same is ratified on July 13, 1994, with some reservations and conditions. These conditions stated that if any provisions of the Convention contradict Iran’s internal and Islamic laws, the latter would override the Convention. This conditional acceptance of the Convention has allowed the violations of children’s rights and has prevented the existing legal system from protecting these rights. In this paper, a few examples of how laws in Iran fail to conform to international standards set by the CRC and violate the rights of children are discussed briefly.

Iran’s failure to protect children’s rights is not simply a legal problem. It also has social, economic, and cultural dimensions. However, this paper deals with only a few aspects of the discrimination imposed on Iranian children through the legal system. Current law must be changed to conform to international standards of human rights, specifically the rights of children. For years, children’s rights activists, along with international supporters, have worked to achieve small changes. Increasing the legal age for marriage is one of them. Yet a human rights crisis exists in Iran today. Children and women need legal protections to achieve freedom and equality. Any attempt to improve the legal status of children and women is a step towards fulfilling the goals of humanity and enhancing human rights. It has become the most important struggle of Iranian society at this time in its history.

Concerning the rights of the child, there was no comprehensive legal framework in Japan until the National Diet ratified the Convention on the Rights of the Child. Within our domestic legal system, there is an obligation for adults to protect the child. However, in the field of family law, children of 15 years or older are treated like an adult in certain cases. As for fertility assistance, there is not yet sufficient legal basis to manage the parent-child relationships. Concerning the parent-child relationship, we have been using the concept “parental authority” in the Civil Code, but recently the idea of “parental responsibility” is being accepted and the interest of the child is deemed most important. The child born out of wedlock has been discriminated against in the matter of succession, but in September 2013, the Supreme Court made a decision that such discrimination violates the Constitution (equality under the law). The Japanese Government is preparing for amendment of the Civil Code to abolish such discrimination.

After a very brief introduction, the report summarises the legal status of the child in Portugal, including the way the rights of the child are handled in Portuguese legislation. It describes the different legal meanings of the concept of child and the different thresholds applied in the various branches of the law. The paper then addresses the main topics highlighted in the questionnaire drawn up by the International Academy of Comparative Law, inter alia the rights of the child born in and out of wedlock, the establishment of maternity and paternity, termination and restriction of the exercise of parental responsibilities, adoption (including intercountry adoption), medically assisted procreation and the rights of the child to information, to participate and be consulted in matters affecting him or her and to freedom of thought, conscience and religion.

The Romanian national report, submitted to the Congress of the Academy of International Law held in Vienna in July 2014, provides a broad overview on the national legal framework concerning the rights of the child, focusing not only on the relevant provisions from the Romanian Civil Code but also on the special legislation concerning children, the criminal law regulations as well as on the principles set forth at the constitutional level. The national report is of genuine interest, especially in the light of the fact that the Romanian civil legislation has been subject to an extensive reform, finalised with the adoption, in 2009, of a new Civil Code which entered into force in 2011.

The Scottish Government recently affirmed its commitment to making Scotland ‘the best place in the world to grow up’. Recognition of the human rights of children, particularly as set out in the United Nations Convention on the Rights of the Child, is an integral part of achieving that goal. This paper provides an analysis of the extent to which children’s rights are currently recognised within Scots family law.

Although the Convention as a whole has not been directly implemented in domestic law, the paper examines the areas in which individual rights – including the principle of the best interest of the child and the child’s right to participate in decisions affecting his/her life – have been transposed into areas of domestic legislation. It also highlights areas where the Convention has yet to have the desired effect in Scotland. It concludes that, although much progress has been made towards recognising the child in law, work remains to be done to realise the Scottish Government’s vision.

The Republic of Serbia is one of the “new” states on the world map. In 2006, after almost 90 years of being incorporated in broader state unions, Serbia has become an independent state. The implementation of the Convention on the Rights of the Child in Serbia has been impacted by the long-term consequences of the wars in the region during the 1990s and transition from socialist to market economy. The current political situation in Serbia is characterised by a struggling coalition government, still inadequate rule of law, high degree of corruption, mismanaged economy and slow decentralisation process. In addition, Serbia still struggles with negative attitudes towards the rights of the child, which can be witnessed in any stratum of the society. Often, efforts to implement the CRC or to claim rights of the child involve not only legal but also social and moral actions to overcome obstacles imposed by the dominant social discourse. Therefore, this paper offers insight into the implementation of selected rights of the child in Serbia and suggests some general and law reform-specific recommendations for improvements and effective and efficient implementation of the CRC.

This chapter examines the rights of the child in Solomon Islands. Commencing with a short introduction to the country, the chapter provides an outline of Solomon Islands’ plural legal system. It looks first at the State legal system, before moving on to a brief introduction to customary law. The chapter explains the place of international law in the legal system and outlines the relevant conventions and protocols. It describes the patchwork of legislation which governs the age of majority. It then discussed the other domestic laws governing children, both in the context of protection of children and the promotion of their rights. With reference to relevant case law, it discusses how far the laws go to comply with Solomon Islands international obligations and to protect the rights of the child. It also looks at reciprocal obligations. The chapter concludes that there is an urgent need for comprehensive child rights legislation in Solomon Islands. However, rather than adopting a bill modelled on foreign legislation, this should be drafted to take into account the circumstances of Solomon Islands.

Le Code civil espagnol promulgué en 1889, à l’égal des autres codes européens, se base sur la famille patriarcale que atribue au mari presque tous les droits familiaux. Aprés 1958 quelques lois améliorent timidement la situation juridique de la femme et des enfants. La promulgation de la Constitution de 1978 signifiera un changement profond de notre Droit civil de la famille, de sorte que le Livre I du Cc devra être réfondu, presque entièrement, après 1981. En conséquence, la Convention de 1989 va trouver en Espagne un terrain bien préparé pour recevoir les nouveaux principes internationaux. À signaler que l’art. 10 de la Const. dispose que les Traités Internationaux dans la matière sont une source d’interprétation de notre système juridique. On passe en revue quelques normes constitutionnelles relatives aux mineurs (majorité d’âge, liberté idéologique, religieux et de culte, abrogation de l’état catholique, principe de la coopération de l’état avec les églises reconnues, protection de l’enfance et de la jeunesse, liberté d’enseignement et d’association, etc). Finalement on répond au questionnaire.

The Netherlands do not belong to the first countries that have ratified the UN Convention on the Rights of the Child (CRC). On the contrary, it took until the 8th of March 1995 before the CRC entered into force for the Kingdom of the Netherlands, after ratification by the Dutch Parliament on the 24th of November 1994. The CRC did not have the ‘game changing’ impact on the Netherlands as it did have on other countries. This is probably one of the reasons why the ratification of the CRC has not resulted in major adjustments of statutory law, including the Dutch Constitution. Nor has the CRC led to a critical and holistic assessment of the Dutch legal system as far as the position of children is concerned. This seems particularly true for the area of family law, in which notions such as the best interests of the child were already common good, significantly influenced by the increasing amount of case law of the European Court of Human Rights. This chapter analyses a number of issues related to family law and some related areas, such as labour law, in light of the UN Convention on the Rights of the Child. It will start by addressing some relevant general principles, such as the definition of the child, the best interests of the child principle and the right to be heard. Subsequently, a number of family law issues will be analysed, including (inter country) adoption, parental responsibilities and medical decision making.

The United Kingdom (UK) comprises Great Britain (England, Scotland and Wales) and Northern Ireland. There are three legal jurisdictions, with England and Wales currently sharing jurisdiction. Current moves towards increasing devolution render the legal landscape complex but provide an opportunity to compare the varying commitment of the UK’s constituent nations to implementation of the UNCRC. After an explanation of the definition of a ‘child’ in UK law and of the way in which the ‘best interests’ of the child relate to the ‘welfare principle’ underpinning UK family law, the key issues raised by the United Nations Committee on the Rights of the Child in its Concluding Observations in 2008 are set out, followed by commentary on significant developments since that date, including the UK Government’s Fifth Periodic Report (2014), and consideration of specific issues regarding family law relations. Analysis leads to the conclusion that the current status of children’s rights in the UK reflects the remnants of a paternalistic culture and an ambivalent commitment to the concept of children as rights holders. Despite evidence of prioritisation of children at policy level within the devolved administrations, policies are regarded by some as more often concerned with children’s welfare than their autonomy rights, and practice has struggled to match rhetoric in the current economic climate. Central Government has been predominantly concerned with fiscal considerations since taking power in 2010. Consequently, to date, the UK has not demonstrated a commitment to children’s rights commensurate with its economic standing.

This paper focuses on some of the core principles of the UN Convention on the Rights of the Child and their application under US state and federal law. While the United States has not ratified the Convention, it is a signatory. Many of the most intractable cultural issues in the United States involve children and their rights to participation, information, and decision-making. Frequently, primary and secondary education presents a fertile battleground for “cultural clashes” between parents, schools, and state officials. In the private context, both US law and the UN Convention have adopted the “best interests of the child” standard. Despite the usage of identically named or similarly sounding concepts, to what extent US approaches may be aligned or conflict with the Convention remains subject to question. The United States would benefit from more active participation in a global dialogue about children’s issues, especially as brain science and technological change challenge our traditional understanding of what it means to be a “child” and a “parent.”

The objective of this paper is to investigate the mechanism of implementation of principles and provisions of Convention on the Rights of the Child (1989) in Uzbek law and practice, to highlight positive developments, as well as to illuminate obstacles that impede the better realization of children’s rights in Uzbekistan.

In this manuscript the author critically analyzes national legislation and legal practice in the area of children’s rights and addresses the essential issues, such as whether a child is entitled to get information about his or her parents or to claim on deprivation of parental rights; implementation of the best interests principle in domestic law and practice; participation of the child in family law disputes, criminal proceedings, and decisions about medical treatment; legal consequences in regard to the child in the event of termination of parental rights; prerequisites for intercountry adoption; obligations of the child toward his or her parents; and the right of the child to employment, the right of the child to change his or her personal name, as well as the right to religious freedom.

In this article the method of data collection is extensively applied. The respondents’ group comprises scholars, judges, prosecutors, attorneys, guardianship bodies, etc. who have been interviewed on specific issues of application of laws about children’s rights in practice.

Findings of this paper may be useful for foreign scholars, legal practitioners, students, as well as for individuals engaged in civil relations involving foreign element.

Il s’agit de montrer la façon dont la Convention des Nations Unies sur les droits de l’enfant a été transposée dans la loi vénézuélienne. Pour cela, on envisage les principes fondamentaux inscrits dans la Constitution de 1999, ainsi que la loi-cadre sur le sujet, appelé Loi organique pour la protection des garçons, filles et adolescents dictée en 2007, et ses réformes ultérieures, en partant de la consécration et le développement de l’intérêt supérieur de l’enfant, et par la suite, de la révision du statut réglementaire de certains droits et situations particulières, comme le droit à connaitre ses origines, le droit d’exprimer leur opinion sur des questions d’intérêt, le droit à la liberté de pensée, de conscience et de réligion, l’interdiction des châtiments corporels, la privation des droits parentaux, le droit de changer son nom et, entre d’autres, le droit au travail. On prétend déterminer si ceci a été bien fait, au moins dans la perspective purement formelle.