The State
Contents- Introduction
- The State
- Local and regional governance
- Independent child rights institutions and national human rights institutions
- Civil society organisations and non-governmental organisations
- Religious and community leaders
- Other community actors
- Business sector
- Media
- Academic institutions
- International organisations
Judiciary
Role of the judiciary in children’s rights legislative reform
The judiciary (courts and/or judges) does not have legislative powers, but it can have a role in law making (in particular in common law systems). Courts and judges do not form part of the executive either.
The primary responsibility of the judiciary is to oversee and scrutinise the application, implementation and enforcement of legislation and to interpret domestic legislation, potentially also in light of the domestic constitution and/or international law (depending on the legal system)
In some jurisdictions, courts can rule that legislation is in violation of children’s rights, and that the State needs to take action to comply with children’s rights. Courts can thus prompt the executive and the legislative in reforming legislation to bring it in line with children’s rights.
E.g.: In Baby ‘A’ (Suing through the Mother E A) & another v. Attorney General & 6 others [2014], the High Court of Kenya at Nairobi heard a case about the rights of intersex children. It found that there was a need for guidelines, rules and regulation for surgery on intersex people and a need for the government to collect data on intersex people. Among other things, it directed the government to submit to parliament an appropriate legal framework governing issues relating to intersex persons, including a statute regulating the designation of intersex persons as a sex category and guidelines and regulations for surgery for intersex persons.
The judiciary thus has an important role in ensuring that domestic legislation and its application is compliant with children’s rights as embodied in the CRC.
E.g.: In Mudzuru & Another v Ministry of Justice, Legal & Parliamentary Affairs (N.O.) & Others, the Constitutional Court of Zimbabwe heard a case about the minimum age of marriage. The Court declared that Section 78(1) of the Constitution of Zimbabwe sets the minimum age of marriage at 18 years. It also found that any law allowing for any person under the age of 18 to marry is unconstitutional and is void, and that no person can marry under the age of 18.
Judges (and legal support staff) need to be fully aware of States’ obligations under the CRC and related standards. This includes knowledge of the recommendations of the CRC Committee (General Comments, among others). Building the capacity of judges is an important aspect of the implementation of legislation.
- This is equally important for legal support staff working in courts and lawyers playing a role in court cases.
As one of the key stakeholders, the judiciary needs to be consulted when legislation is being drafted.
See also
Child rights strategic litigation – role of lawyers or others acting for or on behalf of children
Child rights strategic litigation can contribute to the development of children’s rights legislation.
- Courts play a primary role in the interpretation, enforcement and implementation of these provisions.
- Litigation is a tool through which lawyers or others acting for or on behalf of children can challenge legislation and the interpretation, enforcement and implementation of legislation in light of children’s rights.
- Public and private organisations and individuals can pursue litigation in favour of children’s rights.
- Invoking children’s rights before courts encourages greater legal reliance on and reference to children’s rights values throughout domestic and international legal systems (Kilkelly 2011).
- This requires that lawyers and others acting for or on behalf of children are fully aware of States’ obligations under the CRC and related standards. This includes knowledge of the recommendations of the CRC Committee (General Comments, among others).
- Litigation can be a prompt for children’s rights legislative reform.
- In fact, strategic litigation (or public interest litigation) can raise awareness of the need for legislative reform among the public and within the government.
- Strategic litigation and social movements for children’s rights can mutually reinforce each other and lead to innovative change.
- This was noticeable in, for example, Brazil and South Africa concerning the right to equal access to quality education (Open Society Justice Initiative 2017).
- A decision from a court may also require the State to reform its legislation to bring it in line with children’s rights standards.
- In common law countries in particular, it can result in immediate changes in law in favour of children’s rights
See also
E.g.: The Spanish Supreme Court heard a case brought by a person born in Mali and who immigrated alone to Spain. Upon entering Spanish territory, the applicant declared that they were of legal age so that they could reach Madrid more easily. After that, when applying for legal guardianship, they provided official documentation stating that they were a minor. The Prosecutor’s Office for Minors refused to declare the applicant a minor because of the alleged inconsistency regarding their real age and their refusal to submit to medical examinations to determine their age. The Office subsequently denied child protection services and the right to legal guardianship. The administrative decisions were upheld by the courts in first instance and on appeal. However, in its decision no. 307/2020, the Supreme Court reversed the decision. It recalled the importance of protecting unaccompanied minors and held that domestic provisions must be construed in accordance with the best interests of the child and that foreigners whose age cannot be determined with certainty must be treated as minors until their age is established. It added that children’s best interests require judges to proceed on a case-by-case basis and to attempt to balance the danger of sending non-minors to minor centres and the risk of leaving actual minors without protection. The case is part of a strategy developed in part by Fundación Raíces to aid immigrant minors in similar situations (FAIR project). They are advocating for the Spanish Government to amend legislation to reflect the Supreme Court’s ruling and for a reform of the system so that requests for legal guardianship be directed to judicial organs. (ACRSL case note).