children’s rights legislative reform

Method 2: Comprehensive Children’s Rights Code (single-law approach) - Childrens Rights Reform

Incorporation

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Method 2: Comprehensive Children’s Rights Code (single-law approach)

A Comprehensive Children’s Rights Code is a single piece of legislation covering the full scope of children’s rights (civil, political, economic, social and cultural rights).

The introduction of a comprehensive children’s code requires thorough examination of all potential implications of each provision, both individually and in terms of its influence on (the implementation of) other parts of the Code.

It is also important to determine the impact of the Code on other legislation that continues to be in force, at all levels of government.

Any legislation that counteracts the provisions of the new Children's Rights Code will have to be repealed or replaced by the provisions of the Code or revised to bring it into conformity with the new legislation.

Benefits of a Comprehensive Children’s Code

  • A Comprehensive Children's Code has the advantage of providing a comprehensive body of legislation dealing with all aspects of children's rights, including the full scope of rights and freedoms in the CRC.
  • The full incorporation of the CRC through a single-law approach reinforces the mutually supportive nature of the provisions.
  • The CRC Committee has shown a preference for this way of incorporating the CRC into domestic legislation.

E.g.: In the concluding observations on the combined fifth and sixth periodic reports of Canada, for instance, the Committee's views were as follows: “While welcoming the incorporation of the Convention into many subnational jurisdictions legislative preambles, the Committee reiterates once again that the State Party should develop a comprehensive law on children’s rights at the federal level in line with the principles and provisions of the Convention and ensure the equal implementation of its laws throughout the country” (COB Canada, 2022, para 7)

Examples of Comprehensive Children’s Codes

E.g.: Code on the Rights of the Child of Georgia

E.g.: Children’s Code Act of 2022 Zambia

E.g.: The Law (2018:1197) on the United Nations Convention on the Rights of the Child was officially integrated into Swedish legislation on January 1, 2020.

  • According to § 1 of the law, articles 1-42 of the United Nations Convention of November 20, 1989, concerning the rights of the child, are to be applied in their original form as Swedish law. The original English and French versions of the Convention, along with a Swedish translation, are provided as an appendix to the law. In cases of legal conflicts, standard legal methods are employed for interpretation. It's important to note that unlike the European Convention on Human Rights (ECHR), which holds a specific constitutional status ensuring that no law may contravene its provisions, this is not the case for the CRC in Swedish legislation. Additionally, only articles 1-42 of the CRC have been incorporated into Swedish law.

E.g.: Jersey Children (Convention Rights) Law 2022:

  • The States Assembly adopted a due regard law which places a duty on Ministers and their delegates, all elected Members of Jersey’s States Assembly and the Committees and Panels of the Assembly, together with public authorities, to give due regard to the UNCRC in relation to the development of legislation, policy and practice. This new primary law indirectly incorporates the UNCRC into Jersey’s legislation via a model of ‘due regard’ and introduces a statutory Children’s Rights Impact Assessment (CRIA) process.

Challenges of a Comprehensive Children’s Rights Code

Although a Comprehensive Children’s Rights Code allows States to implement the CRC as a whole, the scope or breadth of coverage may present challenges.

  • The complexity of an all-encompassing law can make it difficult to adopt.
    • There is a risk that some segments of society may oppose certain parts of the Code and attempt to undermine it in its entirety or succeed in diluting it, and thus minimise its effectiveness.
    • There is the risk of undermining children’s rights if (certain) legal provisions (ultimately) provide a lower standard than the CRC.
      • The drafting of a Comprehensive Children’s Rights Code requires state-of-the-art legal knowledge of children’s rights, which should guide the process of legislative reform throughout.
  • The number and variety of elements in a Comprehensive Children's Rights Code can also make it more difficult to determine its concrete impact on children, also bearing in mind that children’s rights impact, many different aspects of children’s lives.
  • Even with a Comprehensive Children's Rights Code in place, there will inevitably be other legislation which affects children’s rights, even if it does not specifically mention children.
    • Therefore, even with a Comprehensive Children's Rights Code, attention will have to be paid to other legislation.
  • The level of detail in a Comprehensive Children's Rights Code may be limited (i.e. there is only so much one can regulate in legislation), which would require additional (lower) legislation and regulation providing additional guidance.