Key elements of children’s rights legislative reform
There is no single way of legal incorporation through children’s rights legislative reform and the different methods (method 1, 2 and 3) could also be combined.
A Comprehensive Children’s Rights Code could be seen as the ideal form of legal incorporation, favoured by the CRC Committee.
However, it comes with challenges and it may not fit with the legal system and constitutional structure of States Parties.
A Comprehensive Children’s Rights Code does reflect the idea that children’s rights must be respected, protected and fulfilled in a comprehensive manner.
A constitutional approach or an incremental approach with the ultimate objective to realise this comprehensive level of protection of children’s rights may be more realistic for many states; this may also be the case if legislative reform is viewed in connection with the other legal and non-legal means of incorporation.
Regardless of the method followed in a particular jurisdiction, States Parties can use legislative reform to establish a higher level of protection of children’s rights (i.e. higher than provided by the CRC, art. 41 CRC).
The term ‘child’ should be clearly defined and the definition should include ‘every human being below the age of eighteen years’;
The following general or key principles of the CRC should be recognised:
Non-discrimination (art. 2 CRC);
The best interests of the child principle (art. 3 (1) CRC);
The child’s right to life, survival and development (art. 6 CRC);
The child’s right to be heard (art. 12 CRC);
Children’s evolving capacities must be recognised and respected (art. 5 CRC);
In the exercise of their rights, children should receive appropriate direction and guidance from parents, legal guardians or the (extended) family, in a manner that respects the child’s evolving capacities and that respects children as rights holders. Children should also receive direct protection from the State, in cases where parents fail to provide adequate protection of, or in some cases abuse, the rights of children (CRC Committee 2023);
Parents’ responsibilities, rights and duties to guide their children are not absolute but, rather, delimited by children’s status as rights holders. The provision of direction and guidance by parents must be exercised in a manner to respect and ensure children's rights (CRC Committee 2023);
Children should be acknowledged as rights holders entitled to civil, political, economic, social and cultural rights, which should be respected, protected and fulfilled by the State, and there should be recognition that these rights are universal, interrelated, interdependent and indivisible;
Children’s right to effective remedies for rights violations should be recognised and always upheld, regardless of the legal context;
Children’s rights legislative reform as a process must be respectful of children’s rights (CRBA) and should as a minimum include the participation of children, a child rights impact assessment and evaluation and monitoring to assess its efficacy and impact.
