The legislature plays a critical role in approving and subsequently adopting children’s rights legislation that is initiated by the executive. The legislature may also initiate children’s rights legislation.

In many systems around the world, the parliament essentially embodies the legislative power.

• The CRC Committee underscores the importance of the role of parliaments at the national and subnational levels in the promotion and protection of children’s rights under the CRC and its OPs (CRC Committee, IPU, 2022, para. 1).
• The CRC Committee and the Inter-Parliamentary Union (IPU) highlight that parliaments have an important role in (CRC Committee, IPU, 2022, para. 2):
  • Promoting a Children’s Rights Based Approach in legislative processes;
  • Drawing on their constitutional powers to engage in the implementation of the CRC;
  • Promoting the participation of children in decisions affecting them (see IPU, UNICEF, 2011);
  • Raising awareness of the general public, including children, CSOs and other stakeholders on the role of parliaments in promoting and protecting children’s rights.
• Parliaments typically ratify international instruments like the CRC and its three OPs (a process which includes decisions on declarations and reservations; see section WHAT and WHY) (CRC Committee, IPU 2022, para. 10), which serves as an important starting point for the implementation and incorporation of children’s rights, through legislative reform among other means.
  • In some States ratification (or accession) can be done by the executive with prior authority from the parliament. (IPU UNESCO 2003).

Parliaments should use their powers to ensure the full realisation of children’s rights in legislation and to address legislative gaps. During the CRIA (See section HOW > Child Rights Impact Assessment), parliaments should be proactive in identifying the legislative provisions needed to give effect to international obligations.

In this capacity, parliaments have role to play in:

• Contributing to the drafting of legislation and amendments of legislative proposals;
• Rejecting draft legislation, even in States where legislative initiative lies with the executive;
• Adopting legislation; and
• Scrutinising the implementation, monitoring and evaluation as part of parliaments’ responsibility to oversee the work of the government, including budget allocation (see also budgetary power below).

See: CRIN’s Guide for Parliamentarians

Special parliamentary committees can be established to provide consultation on children’s rights legislative reform (e.g. a committee dealing with children’s rights, committee on justice, etc.). States Parties can also create parliamentary committees that are primarily or exclusively dedicated to children’s rights, coordinate their mainstreaming throughout the work of the legislative body and support children’s parliaments.

Parliament should develop tools and mechanisms to facilitate the participation of children in parliamentary work, including in the children’s rights legislative reform process. They should also engage with constituents, media and social media to promote children’s rights and to raise awareness of children and the general public (CRC Committee, IPU 2022, para. 10).

• Parliaments also possess budgetary power, which is often an element of parliaments’ legislative powers. Parliaments should adopt a children’s rights based approach in the budget, and the sufficient, fair and rational distribution of budget resources for children, also in relation to legislative reform (CRC Committee, IPU 2022, paras. 7 and 10). Parliaments should ensure that resources are made available for the prevention of legislative violations, and there is protection and redress when they do occur.

• Parliaments can assist in drawing up national plans of action and fulfilling national reporting obligations (IPU UNESCO 2003). This could be part of parliaments’ interaction with the executive branch to coordinate national efforts to respect, protect and fulfil children’s rights (CRC Committee, IPU 2022, para. 10).

• Parliaments should exercise oversight of the implementation of legislation and policies by the executive. Oversight of the executive includes visiting facilities where children are held and supporting the overall administration of justice with respect to the judiciary. By monitoring the executive branch at the national and local levels, parliaments can help to increase transparency and accountability and to identify challenges that should be addressed through new legislation or policies (CRC Committee, IPU 2022, para. 6)

• Parliaments can also push for and legislate the establishment of a National Human Rights Institution (NHRI) and an Independent Children Rights Institution (ICRI) to promote debate on children’s rights and participate in the monitoring of the implementation of children’s rights (IPU UNESCO 2003).

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.

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.

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