children’s rights legislative reform

Method 1: Constitutional incorporation - Childrens Rights Reform

Incorporation

Contents

Method 1: Constitutional incorporation

Constitutions provide the opportunity to define the relationship between the domestic law of a State Party and its treaty obligations and to repeat (some of) the core provisions of the CRC.

As constitutions often possess the status of the highest standards by which all acts and omissions are evaluated, and also have the binding force of the law, their role as tools of change in favour of children’s rights is significant.

The authoritative position of the constitution is generally defined by 'supremacy clauses'. Without such clauses, children’s rights may not be adequately protected by the Constitution.

  • E.g.: Iraq, Nigeria, East Timor and Ukraine
    • Article 13 (1) of the Constitution of Iraq regards the Constitution as the “supreme and highest law...and shall be binding throughout the country without exceptions.”
    • Article 1 (3) of the Constitution of Nigeria provides that “if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”
    • Section 2 (3) of the Constitution of Timor Leste states that “the validity of the laws and other actions of the State depends on compliance with the Constitution.”
    • Article 8(2) of the Constitution of Ukraine establishes its Constitution as having the “highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and shall conform to it.”
  • However, other constitutions do not have such a clause and do not allow legislation to be evaluated against the constitution.
    • E.g. In the Netherlands, a monistic system, formal statutory acts cannot be measured against the constitution (art. 120 Constitution), but they can be measured against international legal treaties (art. 93 and 94 Constitution)
Key considerations regarding the process of constitutional reform

Reform of constitutional law can basically take place in two ways:

(a) the formulation of a new constitution of a State Party.

(b) the review or amendment of an existing Constitution.

And two broad types of constitutional reviews may be envisaged:

  • a holistic review, covering the constitution in its entirety; or
  • a review of specific provisions.

Procedures for constitutional reviews will differ, based on the political system in question. In general, they require more complex procedures and consultations compared to legislative reviews.

Some constitutions set out the circumstances and legal procedures to be followed in any given constitutional review and have even defined some areas as ‘entrenched’, requiring a national referendum to approve valid amendments. In all cases, however, parliament plays a key role in the constitutional reform process.

E.g.: In Ghana, the responsibility for initiating constitutional reform primarily lies with Parliament. Under Article 289 of the Constitution, Parliament is authorised to amend any provision of the Constitution with the approval of two-thirds of all members at the second and third readings. However, specific clauses, such as those concerning fundamental human rights, including article 28 related to children's rights, cannot be altered solely by an act of Parliament. Instead, article 290 (4) stipulates that proposals affecting such clauses must be submitted to a referendum. This referendum requires a minimum turnout of 40% of eligible voters, with at least 75% of those voting in favour for the proposed amendment to be passed, underscoring the significance of popular participation in Ghana's constitutional amendment process and ensuring protections for vulnerable groups like children.

Constitutional reforms can be highly politicised and trigger a lot of political and public debate. An attempt to include children’s rights in the constitution may therefore mean that children’s rights become part of such a debate.

E.g. in Chile, there have been two recent attempts to draft an entire new constitution. The outcomes of both attempts have been rejected by the voters (in 2022 and 2023).

Children’s rights provisions in constitutions

The existence of a reference to children’s rights in national constitutions indicates the significance attached to children’s rights and/or the CRC (Conor O’Mahony 2019)

However, the degree to which the CRC has been embedded in the text of each provision dealing with children’s rights differs for each constitution. While some constitutions, such as those of Brazil and South Africa (see further below), have elaborate provisions on children’s rights, others have relatively brief provisions and references to specific children’s rights, such as Belgium, France and Sweden (Kilkelly 2019). Other countries have a constitution which explicitly refers to international children’s rights instruments as the applicable legal framework for children within the domestic jurisdiction

E.g.: Spain provides in its constitution that “[c]hildren shall enjoy the protection provided for in the international agreements safeguarding their rights” (Article 39(4) of the 1978 Constitution of Spain), which is considered a form of integral constitutional incorporation (Kilkelly 2019).

  • States Parties should consider special clauses or chapters on children during constitutional reforms. For guidance, reference can be made to key provisions, such as the definition of the child (art. 1 CRC), the non-discrimination principle (art. 2 CRC), the best interests of the child principle (art. 3(1) CRC), the right to life, survival and development (art. 6 CRC), children’s evolving capacities (art. 5 CRC) and the child’s right to be heard (art. 12 CRC). They could also recognise key thematic areas of specific child‐related international norms, such as protection against violence and exploitation, child justice, child protection, children’s rights and the child’s parents and (extended) family, education, (mental) health, social security and adequate standard of living, and civil and political rights of children.
See also

By incorporating provisions from the CRC, States Parties recognise that children are rights holders with the capacity to seek redress for violations of their rights (i.e. access to justice for children; see WHAT Section for more details).

  • This is an essential component of the CRBA and falls in line with State Parties’ obligations under international human rights law.

The relationship between general and specific provisions should be guided by the principles of interdependency and indivisibility of rights, ensuring that both sets of provisions work together seamlessly to safeguard children's rights.

  • General provisions, rooted in universal principles like universality, accountability and participation, form the foundational framework for upholding fundamental human rights across society.
  • Specific provisions, on the other hand, directly address child-specific treaty standards such as non-discrimination, the right to life, survival, and development, emphasising the unique needs and vulnerabilities of children.

E.g.: Constitution of Belgium: Article 22bis

  • Each child is entitled to have his or her moral, physical, mental and sexual integrity respected.
  • Each child has the right to express his or her views in all matters affecting him or her, the views of the child being given due weight in accordance with his or her age and maturity.
  • Each child has the right to benefit from measures and facilities which promote his or her development.
  • In all decisions concerning children, the interest of the child is a primary consideration. The law, federal law or rule referred to in article 134 ensures these rights of the child.

Constitution of Slovenia: Article 56 The Rights of Children

  • Children shall enjoy special protection and care. Children shall enjoy human rights and fundamental freedoms consistent with their age and level of maturity. Children shall be guaranteed such special protection from economic, social, physical, mental and other exploitation and maltreatment as shall be determined by statute. Children and minors who are not properly cared for by their parents, who have no parents or who are without proper family care, shall enjoy the special protection of the State as provided by statute.

Constitution of Spain: Article 39 Protection of the family and children

  1. The public authorities shall ensure the social, economic and legal protection of the family.
  2. The public authorities likewise shall ensure full protection of children, who are equal before the law, irrespective of their parentage and the marital status of the mothers. The law shall provide for the investigation of paternity.
  3. Parents must provide their children, whether born within or outside wedlock, with assistance of every kind while they are still under age and in other circumstances in which the law is applicable.
  4. Children shall enjoy the protection provided for in the international agreements which safeguard their rights.

Irish Constitution- Thirty-First Amendment of the Constitution (Children) Act 2012: Article 42A

1 The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

2 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.

3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

4 1° Provision shall be made by law that in the resolution of all proceedings—

i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or

ii concerning the adoption, guardianship or custody of, or access to, any child,

the best interests of the child shall be the paramount consideration.

2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.

Constitution of Nepal Article 39 Rights of Child:

  1. Every child shall have the right to name and birth registration along with his or her identity.
  2. Every child shall have the right to education, health, maintenance, proper care, sports, entertainment and overall personality development from the families and the State.
  3. Every child shall have the right to elementary child development and child participation.
  4. No child shall be engaged in any factory, mine or similar other hazardous work.
  5. No child shall be subjected to child marriage, transported illegally and kidnapped or taken hostage.
  6. No child shall be recruited or used in army, police or any armed group, or be subjected, in the name of cultural or religious traditions, to abuse, exclusion or physical, mental, sexual or other form of exploitation or improper use by any means or in any manner.
  7. No child shall be subjected to physical, mental or any other form of torture in home, school or other place and condition whatsoever.
  8. Every child shall have the right to child-friendly justice.
  9. The child who is helpless, orphan, with disabilities, conflict victim, displaced or vulnerable shall have the right to special protection and facilities from the State.
  10. Any act contrary to in clauses (4), (5), (6) and (7) shall be punishable by law, and a child who is the victim of such act shall have the right to obtain compensation from the perpetrator, in accordance with law.

By aligning both general and specific provisions within the constitution, the State recognises the inherent connection between children's rights and broader human rights principles, thereby maximising protection for children within the legal framework. It's imperative that specific provisions concerning children are integrated cohesively within the broader context of human rights, ensuring they are not perceived as separate entities but rather as integral components of the constitution.

  • This approach underscores that children's rights are an inherent part of human rights, enabling countries to design constitutions that comprehensively reflect the principles of human rights while prioritising the well-being and development of children.

Where a State chooses to place its provisions regarding children’s rights as a separate section or within a general and/or broader section, care must be taken to use words and phrases that place children’s rights clearly within the context of human rights and fully integrate them into the larger document. This would ensure that specific provisions are not perceived as mere appendages to the constitution.

E.g.: The Constitution of Venezuela provides insight into how countries can craft provisions that reinforce children as rights holders.

  • Children and adolescents are full legal persons and shall be protected by specialised courts, organs and legislation, which shall respect, guarantee and develop the contents of this Constitution, the law, the Convention on Children’s Rights and any other international treaty that may have been executed and ratified by the Republic in this field. The State, families and society shall guarantee full protection as an absolute priority, taking into account their best interest in actions and decisions concerning them. The State shall promote their progressive incorporation into active citizenship, and shall create a national guidance system for the overall protection of children and adolescents. (article 78)
Additional considerations concerning the influence of constitutions on children’s rights incorporation
  • Constitutional provisions specific to children’s rights can provide a mandate, trigger or springboard for further children’s rights legislative reform.
  • As a minimum, constitutional incorporation legitimises political discourse on children’s rights and provides political justification for government action.
  • If children’s rights are reflected within the supreme law of the land, children will be legally viewed as rights holders.
  • Constitutional provisions on children’s rights give the government political justification for allocating necessary resources for children as they compete for scarce resources.
  • The effectiveness of constitutional incorporation for children’s rights is furthermore dependent on “judicial willingness to embrace the CRC” and the justiciability of the constitutional provisions(Kilkelly 2019).

E.g.: The Section 28 of the Constitution of South Africa has been recognized South Africa offers the clearest example internationally of a constitution that includes children’s rights. (O’Mahony 2019).

Children

1. Every child has the right ­

a. to a name and a nationality from birth;

b. to family care or parental care, or to appropriate alternative care when removed from the family environment;

c. to basic nutrition, shelter, basic health care services and social services;

d. to be protected from maltreatment, neglect, abuse or degradation;

e. to be protected from exploitative labour practices;

f. not to be required or permitted to perform work or provide services that ­

i. are inappropriate for a person of that child's age; or

ii. place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;

g. not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be ­

i. kept separately from detained persons over the age of 18 years; and

ii. treated in a manner, and kept in conditions, that take account of the child's age;

h. to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and

i. not to be used directly in armed conflict, and to be protected in times of armed conflict.

2. A child's best interests are of paramount importance in every matter concerning the child.

3. In this section "child" means a person under the age of 18 years.