children’s rights legislative reform

Non-discrimination and equality before the law - Childrens Rights Reform

Key elements of a Children's Rights Based Approach to legislative reform

Contents

Non-discrimination and equality before the law

Background

In human rights instruments generally

Equality and non-discrimination are fundamental human rights (HRC GC 18, para. 1). States are required to recognise and ensure the equality of all persons before and under the law, and the entitlement of all persons without discrimination to the equal protection and benefit of the law.

Based on the practice and comments of the United Nations treaty bodies, discrimination can be defined as: “any distinction, exclusion, or restriction based on one or more protected grounds that has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of human rights and fundamental freedoms or preventing equal participation in any area of life regulated by law” (Equal Rights Trust 2023)

Equality before the law and non-discrimination are also essential attributes of a human rights-based approach. These rights must therefore guide children’s rights legislative reform.

Prohibited conduct under the principle of non-discrimination (OHCHR, Equal Rights Trust 2023, p. xiii):
  • Direct discrimination: when someone is treated less favourably than someone else is, has been or would be treated in a comparable situation on the basis of one or more protected grounds. It can also occur when a person has a detriment based on one or more grounds of discrimination.
  • Indirect discrimination: when a provision, criterion or practice has or would have a disproportionately negative impact on those with status or a characteristic associated with one or more grounds of discrimination.
  • Ground-based harassment: when someone takes part in unwanted conduct related to a ground of discrimination which aims at or in effect violates the dignity of a person and creates an intimidating, hostile, degrading, humiliating or offensive environment.
  • Denial of reasonable accommodation: necessary and appropriate modifications, adjustments or support that do not impose a disproportionate or undue burden, to ensure the enjoyment or exercise of human rights and participation on an equal basis with others.
  • Failure to comply with accessibility standards: Failure to adopt and implement measures necessary to “ensure equal access to the physical environment, transportation, information and communications, places of work, education and health care and other facilities and services open or provided to the public”.
  • Segregation: when people who share a ground of discrimination are separated and provided different access to institutions, goods, services, rights or the physical environment without their full, free and informed consent,
  • Victimisation: when people experience adverse treatment or consequences because they took part in a complaint about discrimination or in proceedings for the enforcement of equality provisions.

It is recommended that these forms of discrimination and unequal treatment be prohibited in national legislation.

In the CRC

According to article 2(1) CRC, States Parties must ensure that all rights in the CRC are enjoyed by each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

‘Other status’ allows for the inclusion of other characteristics that are not expressly listed, and for States Parties to derive additional categories or classifications based on local circumstances.

  • As an example, the CRC Committee interprets ‘other status’ to include the street situation of a child or their parents and other family members (CRC GC 17, para. 25).
  • Differential treatment between children and adults, or between children, without a legitimate objective that justifies such difference, constitutes violations of article 2 CRC (Peleg 2019).
  • The application of the right to non-discrimination does not mean that children are entitled to identical treatment (CRC GC 5, para. 12). Special measures (including affirmative action) may be required to counter discrimination or inequalities (HRC GC 18, para. 10).
  • Article 2(2) CRC states that all appropriate measures must be taken to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

Implications for legislative reform

In the legislative reform process

The legislative reform process should include all relevant stakeholders, including children, without discrimination. States Parties should make an extra effort to involve representatives of groups that are marginalised, excluded or discriminated against.

See also

In the substance of legislation

The right to non-discrimination and equality before the law requires States Parties to take appropriate proactive measures, including legislative measures, to ensure that all children enjoy their rights under the CRC (CRC GC 14, para. 41).

States Parties should enact legislation that respects, protects and fulfils children’s right to freedom from discrimination. This could be done through the development of comprehensive anti-discrimination legislation that aims to protect all human beings, including children, against discrimination.

Legislation should include access to justice and effective remedies against discrimination or unequal treatment for all, including children – specific barriers that children may experience (see UNICEF 2015), including lack of legal capacity or standing, should be specifically addressed in legislation (Liefaard 2019).

See also

Comprehensive anti-discrimination legislation should meet the following criteria required by international human rights law (OHCHR, Equal Rights Trust 2023):

  • Prohibit all forms and manifestations of discrimination, with an extensive and open-ended list of grounds and covering all matters regulated by law;
  • Provide explicit definitions of all forms of discrimination, consistent with international human rights standards.
    • This includes discrimination based on association (i.e. on the basis of someone’s association with a group or with person’s particular characteristics), perception (i.e. on the basis of a perception -accurate or not - that someone possesses a particular characteristic), or a combination of characteristics (i.e. multiple discrimination).
  • Explicitly permit, require and provide for the adoption of positive action measures. These are designed to make progress towards the realisation of equality.
  • Operationalise the rights to equality and non-discrimination within the public and private spheres operational, by ensuring accessibility and establishing equality.
  • Provide for effective remedies (as well as relevant institutional and societal remedies) that are accessible to children, including effective, dissuasive and proportionate sanctions. Survivors should be provided with recognition, compensation and restitution.
  • Establish necessary procedural safeguards and adjustments to ensure access to justice.
  • Provide for the establishment of an independent, specialised equality body with sufficient resources, functions and powers.
  • Provide the adoption of other implementation measures necessary to address structural discrimination and progress towards equality. (see further OHCHR, Equal Rights Trust 2023, p. xvi; see also p. 117).

States Parties must actively identify individual children or groups of children for whom the recognition or realisation of their rights may demand special measures (CRC GC 5, para. 12). Groups of children facing particular discrimination in the country might be specifically mentioned in the legislation, along with an open-ended clause such as ‘and any other status’.

Section 7 of the Children’s Code Act 2022 in Zambia provides specific grounds on which a child should not be discriminated against or punished: “race, colour, sex, gender, age, language, political or other opinion, conscience, belief, tribe, pregnancy, health, ethnic or social origin, disability, property, birth, economic or other status”. Section 7 replicates the format of article 2 CRC, with one subsection on discrimination on grounds related to the children themselves, and another subsection on grounds related to the child’s parent, guardian, custodial parent or person having parental responsibility.

Legislative reform should ensure that legislation contributes to strengthening the capacity of traditionally excluded children to exercise their rights and combat social practices negatively affecting children (see also Joint GC No. 18 on harmful practices, para. 11 and para. 40).

  • Joint GC No. 18, harmful practices:
    • Para. 11: States Parties have a duty to comply with their obligations to respect, protect and fulfil the rights of women and children. They also have a due diligence obligation to prevent acts that impact the enjoyment, recognition or exercise of their rights, including by private actors.
For more information: OHCHR, Equal Rights Trust (2023), A Practical Guide to developing Comprehensive Anti-Discrimination Legislation