Child Rights Information Network review
Measuring Maturity: Understanding children’s ‘evolving capacities’ Featuring: ■ Religion or belief: ■ A personal experience ■ Consenting children? when can children decide of age, responsibility and The right to access for themselves? the justice system healthcare
Number 23 October 2009
Child Rights Information Network (CRIN)
The Child Rights Information Network (CRIN) is a global CRIN staff: network promoting information sharing and action on Simon Flacks, Child Rights Officer child rights. We press for rights, not charity, and are guided Patrick Geary, Legal Coordinator by a passion for putting children’s rights at the top of the Stefania Ricci, Office Manager global agenda by addressing root causes and promoting Jennifer Thomas, Child Rights Officer systemic change. Veronica Yates, Director
The UN Convention on the Rights of the Child (CRC) is our CRIN has recently moved. guiding framework, and we believe it offers the best blueprint Our new address is: for children’s empowerment and emancipation from harm and injustice. Child Rights Information Network (CRIN) East Studio • We believe that the only means of achieving long-term 2 Pontypool Place change for children is by strong and explicit promotion of London their rights. This means addressing the root causes of the SE1 8QF lack of fulfilment of children's rights, including challenging United Kingdom traditional beliefs and practices concerning children. We recognise this will often be controversial. Tel: +44 (0) 207 401 2257 Email: [email protected] • We believe that information is a powerful tool for advocacy Website: www.crin.org in pursuing children's rights and that information should be freely available. CRIN’s website offers 18, 519 child rights resources which include information in four languages (Arabic, English, • We believe that it is by working together with a broad French and Spanish). range of actors committed to a similar vision, that we will be most effective and influential. CRIN links to 2,100 organisations worldwide. See www.crin.org/organisations. • We believe that civil society organisations, activists and children have the right to express themselves freely and Listed below are some key toolkits and guides available openly and should have the right to participate in all on the site. matters affecting them. • Guide to child rights mechanisms (March 2009) CRIN is an independent, non political, non religious not for http://www.crin.org/docs/CRINmechs.pdf profit organisation registered in the United Kingdom and regulated by the Charity Commission. Globally, CRIN has a • Guide to strategic litigation for child rights advocates membership of over 2,100 organisations in over 150 countries. (May 2008) http://www.crin.org/docs/Guide_to_Strategic_Litigation.pdf CRIN has a governing body (CRIN Council) composed of nine members who serve in an individual capacity: • Media toolkit (October 2007) Peter Newell (Global Initiative to End All Corporal Punishment http://www.crin.org/docs/media toolkit2.pdf of Children) – Chair Mike Annison (Christian Aid) – Treasurer Also on the website: Paul Bode (Plan International) – Secretary Bill Bell (Save the Children UK) • A to Z of child rights Gema Vicente (Amnesty International) (May 2007) Sven Winberg (formerly of Save the Children Sweden) http://www.crin.org/resources/infoDetail.asp?ID=13423&flag Eva Geidenmark (Save the Children Sweden) =report Andres Guerrero (UNICEF) Knut Haanes (Deputy Norwegian Ombudsperson for Children) • Legal database www.crin.org/Law/search.asp
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Cover Main photo: Robin Mackay/Gary Morgan. Signs: Child Rights Alliance for England, Alan Sutton.
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CRIN Review Contents
Editorial ...... 4 Child rights news desk ...... 6 “Evolving capacities” explained By Gerison Lansdown ...... 7 The right to access healthcare: a matter of age or maturity? By Prinslean Mahery ...... 10 The crisis of identity: being young and transgender in Argentina Interview with Alejandra Portatadino ...... 11 Factfile: All right at home? Promoting children’s human rights in family life ...... 13 Ibero-American countries set progressive youth rights agenda By Rodolfo Albán Guevara ...... 14 Children’s rights means citizens’ rights By Bob Franklin ...... 16 Children’s religion or belief: making an informed choice By Asma Jahangir ...... 18 Man on a mission: Hossam Bahgat on freedom of religion in Egypt Interview with Hossam Bahgat ...... 20 Factfile: Curbs on children’s freedom of religion in Central Asia By Felix Corley ...... 22 Taking the “criminal” out of responsibility Thandanani Ndlovu ...... 23 Making justice child friendly: guidance at last By Sabrina Cajoly ...... 24 Disability: Support? Yes. Sympathy? No By John Conteh, Saidu Thoronka and Mariatu Bangura ...... 26 Australia: make equality work! By Gillian Calvert ...... 27 Marrying protection and autonomy By Angela Melchiorre ...... 28 Early marriage in Yemen: through the eyes of a campaigner By Husnia Al-Kadri ...... 30 Old before their time? Child carers in sub-Saharan Africa ...... 31 FOLLOW-UP: Defeating anti-social technology: positive moves in Belgium By Ankie Vandekerckhove ...... 34 Child rights puzzles ...... 35
Credits: Jennifer Thomas, editor; John Casey, sub-editor; Bill Bell, Simon Flacks and Veronica Yates, editorial advisers; Stefania Ricci and Jennifer Thomas, production; Simon Flacks, gamemaster; Kathryn O’Neill, proof-reader; Translated and produced into French by Brigitte Clark and into Spanish by Liliana Zunic. Design and printing by Creatiscope.
Published October 2009. Child Rights Information Network, ISSN 1475-8342, © Child Rights Information Network, Company limited by guarantee no. 6653398 Registered Charity No. 1125925. The CRIN Review (formerly the CRIN Newsletter) is published annually English, French and Spanish. Authors alone are responsible for the opinions expressed in the CRIN Review. Writers’ suggestions for features are always welcome. In respect of all submissions, the editor’s decision is final. No part of this newsletter may be republished without the written permission of the editor and author. This publication is available free of charge and can also be downloaded from the Internet at: http://www.crin.org/about. If you would like copies mailed to you, please contact CRIN, East Studio, 2 Pontypool Place, London, SE1 8QF, UK or email [email protected]
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Child Rights Information Network (CRIN) Editorial Children face a confusing array of minimum ages at which they are deemed capable of making decisions for themselves – some of them potentially life- changing. The age at which children can have a say in their medical treatment, for instance, or get married or vote, or choose or reject a religion or belief, varies significantly across and even within cultures. The legal minimum age may or may not reflect what children themselves feel they are capable of.
These age-based restrictions are founded what extent parents or legal guardians Respecting the rights of children does not on two main assumptions made by adults: should support and encourage children diminish the role of parents in children’s first, that children lack the capacity to take to exercise their rights. lives, but emphasises the need for parents responsibility for many decisions about their to take children’s views into account lives and must therefore be protected from The Review raises questions, in particular when making decisions that affect them. the consequences of bad decisions; and around disputed areas of children’s rights. A factfile on promoting children’s rights second, that age limits are a crude but For example, while some issues are in the home sets out the benefits for all simple way to achieve that protection – relatively straightforward and uncontested – of involving children in family decisions. even if some children might attain eg, a child should clearly not be able to competence at a younger age, and others participate in armed conflict as a combatant The fact that childhood covers such an attain competence later. – questions around the minimum age of extensive age range means that it criminal responsibility, for example, are encompasses a wide range of competencies, But are rigid age limits the best way of much harder to resolve. needs and rights. Rodolfo Albán Guevara determining children’s competence? reveals how Ibero-American countries are Age-based approaches rely heavily on The starting point must be respect for addressing older children’s rights through adults’ perceptions of children’s abilities. rights and children’s evolving capacities. a progressive new Convention. In some societies, children are already It is true, of course, that adults caring for taking on responsibilities for decision- very young children have to make many Bob Franklin argues that children should making that would be exceptional decisions about children’s lives. But, as be entitled to citizenship rights like anyone elsewhere; other societies protect children children grow, it is important that adults else, and that excluding children from to the point where they are given little take every opportunity to encourage political decisions purely on the basis of scope for independent decision-making. children to discuss, share and then take age is discriminatory. over decision-making for themselves. So what are the alternatives? The concept Involving children is essential for Adults’ freedom of religion and belief is of “evolving capacities”, as set out in encouraging and preparing them to still tightly circumscribed in many parts of Article 5 of the United Nations Convention exercise their own rights. the world, so unsurprisingly, children face on the Rights of the Child (CRC), addresses particular barriers in this area. Asma these dilemmas by introducing the idea that Gerison Lansdown opens the Jahangir provides some direction and children should be able to exercise their Review by introducing the concept of points to how children might be supported rights as they acquire the capacity to do so, evolving capacities. to make informed choices. Hossam rather than when they reach a certain age. Bahgat describes the advances that It requires parents or legal guardians to Prinslean Mahery weighs up the pros strategic litigation is achieving for freedom guide children appropriately and respect and cons of different legal approaches of religion in Egypt. Meanwhile, Felix the extent to which they can exercise their to children’s right to consent to medical Corley highlights growing opposition in rights for themselves. treatment, explaining how South Africa States across Central Asia towards children’s has dealt with the issue. In a related participation in religious activities. This issue of the Review explores what case study, Alejandra Portatadino, the concept of evolving capacities means an Argentinian activist for the rights of Debates around the minimum age of in practice. It looks at: the role of age in lesbian, gay, bisexual and transgender criminal responsibility are contentious even determining competence; other factors people, discusses her work on a case in within the child rights community. At a time that contribute to children’s evolving which a court granted a 17-year-old the when many countries are lowering the capacities; examples of where children’s right to a gender reassignment operation, minimum age of criminal responsibility, involvement in decisions is competency- giving an insight into the lives of, and we asked Thandanani Ndlovu, who has based and how competence might be decisions faced by, transgender children first-hand experience of the justice system, tested; how to balance respect for and young people. She offers guidance for his thoughts on the debate. Sabrina children’s autonomy with their right for children, their parents, and advocates Cajoly reveals the Council of Europe’s plans to protection; and how, when and to dealing with similar situations. to respond to concerns over rough justice
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CRIN Review e , Cour tesy of Photoshar Photo: ©CCP through new guidelines that aim to make the world intended to protect children from sub-Saharan Africa, who have also been justice systems more appropriate for children. age discrimination. Unfortunately, she says, plunged into an adult world at an early this does not apply to the labour market, age. While they demonstrate considerable Young people with disabilities in Sierra where young people are being paid lower capacity for making important decisions Leone John Conteh, Saidu Thoronka and wages than adults for doing the same job. and supporting their household financially, Mariatu Bangura, emphasise that the only strategies must be found to mitigate any way to find out about young people’s lives and Angela Melchiorre considers criteria to damage done in the process. capacities is to ask them. While they appreciate think about when establishing a minimum support, they are frustrated by adults’ over- age of marriage. Husnia Al-Kadri warns In the previous CRIN Review, we described protective attitudes, which they feel exclude of the harm caused by young people taking how children’s right to freedom of them from activities and decisions they are on enormous responsibilities too early in life, association is being curtailed in the UK perfectly capable of participating in. which she has observed in her campaign and other European countries. In a work on early marriage in Yemen. follow-up, Ankie Vandekerckhove Gillian Calvert offers evidence of age explains how Belgium is taking a stand. discrimination from Australia, which, ironically, Research by Save the Children sheds has some of the most advanced legislation in light on the lives of young carers in Jennifer Thomas Editor
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Child Rights Information Network (CRIN) Child Rights News Desk CRIN round-up on recent developments in child rights New on crin.org
Campaign: The future of children’s rights – in whose hands? Photo: Kristopher Carlson, Kitgum, Uganda The CRC’s 20th birthday: 20 November 2009 The aim of the campaign is to ensure transparency in how the top child rights The United Nations Convention on the Rights of posts are appointed. To read more, visit: http://www.crin.org/resources/infod the Child (CRC) will turn 20 in November 2009. etail.asp?id=20623
Listed below are some of the events that will The CRC in court celebrate the CRC’s anniversary. CRIN has just begun a project to investigate the ways in which the CRC Convention on the Rights of the Child: has been used in courtrooms around For full details of events, visit CRIN’s special From Moral Imperatives to Legal web page: http://www.crin.org/crc20/ the world. Obligations – in search of effective http://www.crin.org/Law/CRC_in_c remedies for child rights violations ourt/index.asp UN Committee on the Rights of the Child: Dignity, Development 12-13 November 2009 CRIN guide to child rights mechanisms and Dialogue Organised by Save the Children, the NGO Group for the Convention on the Rights The purpose of this guide is to help 8-9 October 2009 of the Child, CRIN, UN Office of the High readers understand the ’mechanisms’ www.crin.org/resources/infoDetail.asp?ID= Commissioner for Human Rights and working on child rights, such as different 20614&flag=event UNICEF Innocenti Research Centre. parts of the United Nations, or regional bodies like the African Union. http://www.crin.org/docs/CRINmec Other child rights highlights hs.pdf
Toolkit on non-discrimination Complaints mechanism: next steps UN Special Representative on Violence against Children finally This new website explores discrimination Good news! A resolution was adopted by appointed across the range of children’s rights, with a the Human Rights Council in June to set particular focus on age-based discrimination. up the working group that will discuss the In May 2009, UN Secretary-General Ban www.crin.org/discrimination complaints procedure. This first meeting of Ki-moon appointed Marta Santos Pais as the group will take place in Geneva from his Special Representative on Violence Ask the expert 14th to 18th December. Plans for the against Children. meeting are currently being discussed and The appointment was made following Do you have a question about child will be communicated as soon as available. the recommendations of the UN Study rights, your work or your organisation? For further information, contact Anita Goh, on Violence against Children (2006). Do you work in the child rights field Advocacy Offer on “Anita Goh” To read the full story, visit: and think you may be able to answer? [email protected] www.crin.org/resources/infoDetail.asp?ID= Then welcome to CRIN’s advice cafe! or visit: 20194&flag=news The purpose of this service is to http://www.crin.org/law/CRC_complaints/ encourage users to share information Alternative care and expertise on child rights, or General Comment adopted on related activities. children’s right to be heard The UN Human Rights Council adopted www.crin.org/experts the draft UN guidelines for the The UN Committee on the Rights of the appropriate use and conditions of CRINwire Child adopted its General Comment on alternative care for children. The Article 12 on the right of the child to be guidelines have now been submitted Have you caught up with the masses heard in June 2009. to the UN General Assembly. yet, and begun to tweet? Visit CRIN’s To download the General Comment visit: To read more, visit: dedicated Twitter page: http://www.crin.org/resources/infoDet http://www.crin.org/resources/info http://twitter.com/CRINwire ail.asp?ID=20482&flag=news Detail.asp?ID=20660&flag=news
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CRIN Review “Evolving capacities” explained
By Gerison Lansdown, International Child Rights Consultant Photo: ©David Levene/EveryChild Peru We all continue to develop knowledge and skills throughout our lives. But all societies acknowledge that the pace of growth is most accentuated in children, who acquire new capacities at an extraordinary rate.
In most countries, an adult – at whatever duties… to provide, in a manner consistent of a 14-year-old child wishes to re-marry, age adulthood is determined in any given with the evolving capacities of the child, the child will have the competence, and society – is legally presumed to be capable appropriate direction and guidance in the therefore the right, to decide for of taking responsibility for their actions. exercise by the child of the rights themselves if they want to adopt the During childhood, the reverse applies: recognised in the present Convention”. name of the prospective stepfather. children are presumed to lack the competence to take responsibility for This requires that guidance provided by However, children’s rights are not themselves and are therefore understood parents or legal guardians must be contingent on the ability to exercise their to need social and legal protection in directed towards promoting respect for rights on their own behalf, or on legal age accordance with their perceived the rights of the child, and must respect limits. All the rights embodied in the CRC immaturity and vulnerability. the extent to which the child is capable extend to all children. of exercising their rights on his or her The United Nations Convention on the own behalf. For example, every child has The question is whether children Rights of the Child (CRC) provides a a right to a name from birth. Clearly, a themselves can exercise those rights or framework that recognises the right of newborn baby lacks the capacity to whether this responsibility is undertaken every child to such protection. Article 5 determine their own name, so this right on their behalf by parents or other carers, states that parents or legal guardians is exercised on their behalf by their and how decisions are made in a manner “shall respect the responsibilities, rights and parents. However, if the divorced mother consistent with the child’s best interests.
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Child Rights Information Network (CRIN)
Three ways of Children have the right to respect for • the child’s own personality and strengths understanding evolving their capacities and to exercise their rights capacities in accordance with their levels of • the level of support afforded by key The concept of children’s evolving competence. States have obligations adults in the child’s life capacities can be understood through to respect these rights. three conceptual frameworks: • the degree of agency experienced by In reality, however, our knowledge of the child in coping with the situation A developmental concept children’s capacities for informed and The CRC can be seen as a tool for rational decision-making remains limited. • the degree of social and cultural promoting children’s development, While research has been undertaken to acceptance of the behaviour. competence and emerging personal identify pre-determined physiological or autonomy.1 Article 6 is the platform for psychological factors linking age with the Traditionally, protection has been viewed other developmental principles throughout acquisition of competencies, this has as a one-way process, with adults as the Convention.2 It asserts that States largely been conducted in North America agents and children as recipients. The parties shall “ensure to the maximum and Europe in laboratory conditions far reality is more complex: legislation, extent possible the survival and removed from children’s day-to-day lives. strategies, policies and programmes development of the child”. In imposing designed to protect children need to these obligations, it clearly extends the Even within these strict parameters, recognise children’s capacities to contribute mandate to the development of children’s findings have varied widely. There is also towards their own protection and allow cognitive, social, emotional, physical and inadequate comparative data to examine them to build on those strengths. moral development. This breadth is the contrasting competencies of children affirmed in the following articles: in different social, economic and cultural environments. • Article 23 stresses the right to opportunities conducive to the child Indeed, a growing body of recent research “achieving the fullest possible social suggests the need for extreme caution in integration and individual development drawing conclusions on age-related including his or her cultural and spiritual competencies, arguing instead that a wide development”. range of other factors influence how children function. Clearly, there is a need • Article 27 explicitly recognises the for much more research before definitive importance of an adequate standard of conclusions can be drawn. living for children’s “physical, mental, spiritual, moral and social development”. Nevertheless, neither legal frameworks nor policy and practice in most countries give • Articles 28 and 29 spell out the role sufficient consideration to the importance of education in developing the “child’s of recognising and respecting the personality, talents and mental and capacities of children in the exercise of physical abilities to their fullest potential”. their rights.
• Article 31 acknowledges the A protective concept importance of the right to play in Children have the right to protection from children’s development. participation in or exposure to activities likely to cause them harm. For example, These articles place obligations on the CRC includes rights to protection from States parties and other actors with violence, economic exploitation and sexual responsibility for children to fulfil abuse. States have obligations to protect children’s right to development of their these rights. optimum evolving capacities. Respect for children’s evolving capacities An emancipatory concept to take responsibility for their own The CRC includes a number of articles decision-making needs to be balanced that acknowledge the child as an agent against their relative lack of experience. in the exercise of rights: But it is also important not to undermine children’s own capacities for contributing • Article 12 guarantees the right to to their own protection. express views. The extent to which children are likely • Articles 13 to 17 address rights to to be at risk of harm from potential freedom of expression, religion, threats is significantly mediated by a association, privacy and access to number of factors: information.
1. Ochaíta E and Espinosa M A (1997), 'Children's participation in family and school life: a psychological and developmental approach', The International Journal of Children's Rights, 5: 279-297 8
CRIN Review
Encouraging children’s capacities Of course, cultural considerations must be evolving capacities. But it also necessitates The issue of evolving capacities highlights factored into the equation. Behaviours a better understanding of how to provide the necessary balance between, on the considered dangerous in one society are protection in environments that respect one hand, children’s right to recognition taken as the norm in another. Assumptions and advance children’s capacities. of their increasing levels of responsibility of responsibility deemed beyond a small in the exercise of their rights as they child’s capacities in one culture are part of This poses challenges in almost every acquire the capacity to do so; and on their daily experience in another. sphere of children’s rights, including the other, the need for protection in freedom of religion and association, access accordance with their relative youth Some limitations imposed on children to information and the media, ages of and immaturity. are considered to be socially acceptable criminal responsibility and sexual consent, while others deny them opportunities to the right to education, and the role of The CRC provides a mechanism for develop, and prevent adults from seeing work. ensuring appropriate respect for children’s what children are capable of achieving. rights without exposing them Support and encouragement can enable There is an urgent need for better prematurely to the full responsibilities children to achieve skills and competencies understanding of how to promote the normally associated with adulthood. It far greater than would be possible cultural change necessary to ensure that requires primary consideration to be given through threats and punishment. children are protected in accordance to the rights of the child while taking into with their evolving capacities, and that account their views and capacity for Promoting children’s best interests requires they are respected, whatever the level of independent decision-making. recognition of the importance of their those capacities. nstschade.com .er ebsite: www . W Photo: Ernst Schade: Mozambique, Beira, 1989. Son guides his begging blind father
2. Petren A and Hart R (2000), 'The child's right to development', in Children's Rights: Turning principles into practice, A Petren and J Himes (eds), Rädda Barnen/UNICEF, Sweden
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Child Rights Information Network (CRIN)
A boy holds his x-ray plate up to dry before showing it to the doctor at a clinic in Gosaba, Sundarban, India. e
The right to access healthcare: a matter of age or maturity? Photo: ©2005 Nilayan Dutta/Drik, India, Courtesy of Photoshar By Prinslean Mahery, Senior Legal Researcher, Children's Institute at the University of Cape Town When can a child consent to his or her own medical treatment? This simple question opens the door to a moral maze.
Acting in the best interests of a child and duties of parents to guide children in South Africa’s Children’s Act 38 (2005) uses requires balancing respect for their the exercise of their rights while also a dual age and maturity approach. A child autonomy with the need to protect respecting the extent to which children aged 12 or older can consent to medical them from harm. Maintaining this demonstrate capacity to exercise their treatment, surgery or access to delicate balance is particularly difficult rights on their own behalf. contraceptives without parental consent. when it comes to a child’s right to make However, when it comes to surgery, the decisions about their own healthcare. Age limits certainly give clear guidance on child must be assisted by a parent. A child how this translates into practice – ie, the aged 12 or younger can consent to an HIV In many countries, there is an ongoing extent to which healthcare is the test. In all instances, the child must also be debate about age versus maturity; for responsibility of parents or other carers, mature enough to consent before the example, should all children be able to and the stage at which children relevant healthcare service can be supplied. access contraceptive advice at a certain themselves are able to exercise their right age, or is ’maturity’ a better test for to access healthcare services. In South Africa, health rights are directly determining their ability to understand connected to the constitutional right to the consequences of their actions? Are age limits the best dignity. Furthermore, the right to dignity Age is usually the overriding factor approach? is central to the right to physical integrity. since, in the vast majority of cases, Limiting the autonomy of a mature minor The Constitutional Court found that “every if a child is below a certain age she or who solicits healthcare by insisting on child has his or her own dignity. If a child he will not be able to access certain parental consent until a specific age is very is to be constitutionally imagined as an services without a parent – even if the restrictive and potentially harmful. For individual with a distinctive personality, and child is deemed mature enough. example, a child may be prevented from not merely as a miniature adult waiting to accessing important sexual health advice reach full size, he or she cannot be treated One of the main arguments in favour because of the views of a parent. An age- as a mere extension of his or her parents.” of the age-based approach is that it based approach assumes immaturity and serves to protect children from their ignores individuality. There is a less There are three main arguments against own lack of experience. The law restrictive way to protect immature minors using age over maturity: therefore usually puts parents in charge against adverse decisions, namely by using of safeguarding the well-being of their the test of maturity rather than age. Inconsistent nature of age limits: The children. Indeed, in South Africa, line drawn is considered arbitrary and in children’s right to parental care is Australian common law, for example, conflict with a child’s right to self- enshrined in the Constitution. allows children below the age of 16 to determination. make decisions regarding their own The United Nations Convention on the healthcare if the child has the requisite Inflexible approach: Rigid age limits Rights of the Child (CRC) obliges States level of understanding and maturity to ignore the evolving capacities of the child to respect the responsibilities, rights make an informed decision. and fail to promote their right to
1. Christian Lawyers Association v Minister of Health and Others (Reproductive Health Alliance as amicus curiae)
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CRIN Review
Interview with Alejandra Portatadino, Argentinian activist for participate in decisions that affect lesbian, gay, bisexual and transgender rights. them. This is also in conflict with Articles 5 and 12 of the CRC. Although the right to participate is not the same as the right to have decision-making power, the age-based approach
generally ignores the views of children Photo: Sentido G below the age of consent.
Contradictory laws: In South Africa, there is an apparent contradiction The crisis of identity: between general laws covering medical care for young people and those specifically pertaining to abortion. For being young and example, a girl of any age can consent to an abortion without parental assistance or consent, but there is an age limit for transgender in other healthcare procedures. In one particular case,1 a court determined that the non-use of age-limits would prevent Argentina “frustration of a constitutional right when the minor is in fact emotionally and intellectually able to give informed consent to the procedure”. The court In September 2007, an Argentinian court “Gender dysphoria” means being criticised the age-based approach to the recognised a minor’s right to change her discontent with the biological sex you extent that it failed to accommodate gender identity in the first decision of its were born with. It involves being ill at individual difference. kind in Latin America. The court ruled ease with your gender and feeling like your that Natalia,1 17, could undergo gender body does not match who you are. The best of both worlds reassignment surgery and have her identity Using age limits can protect young card and birth certificate amended to live The condition used to be attributed to children from making harmful decisions as a woman. psychological causes, but thanks to research regarding their health and create by the University of Amsterdam among certainty for healthcare providers about Alejandra Portatadino worked on the case others, we have discovered that it has a who they are allowed to serve without as an adviser. Alejandra was herself born genetic origin. During the first two months the need for parental assistance. with ‘Harry Benjamin syndrome’, more of pregnancy, the foetus develops hormonal commonly known as transsexuality. receptors, but sometimes during this process But such an approach is flawed because Alejandra successfully lobbied for the law different inter-sexual states are produced, it ignores the capacity of children below to stop considering gender reassignment where a combination of male and female the arbitrarily set age of consent to make surgery as mutilation. Her private and characteristics co-exist. This is called Harry informed decisions about their own public documents were printed with her Benjamin syndrome, named after the German healthcare. Applying the approach used female name following a Supreme Court scientist who pioneered study in this area. in the abortion law to other healthcare judgment, paving the way for others to provisions would certainly go a long way enjoy the same right. She also persuaded The condition is often heightened by towards protecting the rights of all Durand Hospital, Buenos Aires, to create parental rejection. It is estimated that mature children. However, using a dual the first medical team in the country to in as many as 70 per cent of cases in approach that considers both the child’s detect cases of gender dysphoria and Argentina, children are expelled from the age and their maturity, as established in provide pre- and post-surgical hormonal family home, punished or sent somewhere South Africa’s Children’s Act, is certainly a treatment paid for by the State. to “forget” what they are feeling. A tiny step forward for children’s right to access minority are thought to receive open- healthcare services. Alejandra is a human rights activist and a minded parental support. Parents are member of the Comunidad Homosexual frequently too focused on what they think “Every child has his Argentina (CHA), a national NGO that their child should be like, rather than on advocates for the rights of lesbian, gay, what the child is actually feeling. or her own dignity… bisexual and transgender people and has he or she cannot be a special section for young people. She Children with this condition often feel also teaches bio-ethics to lawyers, public uncomfortable in their own skin from an treated as a mere prosecutors and judges in the Faculty of early age, but the sensation usually grows extension of his or Law at a University in Buenos Aires. stronger in adolescence. Intervention is ideally undertaken at 16 to ensure an accurate her parents.” Alejandra talked to CRIN about the diagnosis. Parents will hopefully understand background to Natalia’s case. and support their child, accompanying them
1. Name changed to protect identity
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Child Rights Information Network (CRIN) to see a professional psychologist who Obtaining credible psychological and specialises in cases of gender dysphoria. psychiatric diagnoses is the first step, as the final judgment often rests on these expert Transgender The only treatment for this condition is a opinions. They assure the judge that it is sex change, or more correctly, “gender not a case of mental illness or another children reassignment intervention”. condition, which would not necessarily require a gender reassignment intervention. elsewhere In September 2007, the Supreme Court of Argentina recognised Natalia’s right to Of course, parental consent is also crucial. change her gender identity. In the event that a child has not been Spain: a 16-year-old Catalan has granted parental consent, they can seek requested permission from a court Natalia was born as a boy but it was legal assistance from an advocate to take to have a gender reassignment obvious to all that she had strong their case. In Argentina, the law establishes operation in Barcelona. feminine characteristics. She was one of that children over 14 are “minor adults”. [Source: AG Magazine] the lucky ones who had her parents’ As such, they have the right to control support. They had unsuccessfully sought their own body. Thailand: Kampang Secondary authorisation for an intervention on two School introduced a third toilet, in previous occasions before they approached Another key factor was public opinion. addition to male and female toilets, CHA. A court had ruled in 2004 that Natalia Natalia’s case attracted a great deal for transgender children in 2008. would have to wait until she turned 21 to of support from journalists and the Headteacher Sitisak Sumontha have an operation. general public. estimates that in any year between 10 and 20 per cent of his pupils I brought her to be interviewed by health, My advice to others working on such consider themselves to be legal and judicial professionals, and all cases is that the child must come first. transgender. agreed that the best thing for Natalia would Close attention must be paid to what [Source: BBC] be a gender reassignment intervention. they are saying in order to determine who Once we took on the case, an intervention they really are and what they are feeling. was approved within a year. Second come the parents. They should More information We acted with parental consent in this listen to their children’s views about case. However, many children with this everything in their lives, not just on the Comunidad Homosexual Argentina (CHA): condition stay locked in an unbearable issue of dysphoria. They can also www.cha.org.ar/ silence because they are scared of being accompany their child to consult with thrown out of their homes. Because of this specialists, such as psychologists. This can To read the first ever informed consent fear, they are often denied any medical or improve the overall relationship and help form for hormonal treatment written in psychological support. parents to better support their children Argentina (in Spanish), which must be against what can often be a cruel world signed by the child concerned, their parents We based our arguments on the UN of inquisitive looks from strangers and and the doctors involved, visit: Convention on the Rights of the Child barbed comments from fellow pupils. (CRC), particularly on the child’s right to http://www.shb- be heard (Article 12) and the right to Third come NGOs. Children and parents info.org/sitebuildercontent/sitebuilderfiles/c health (Article 24). We also referenced can seek advice from human rights NGOs onsentimiento.pdf constitutional rights, such as the right such as CHA, which have professional to control one’s own body and the right psychologists on their staff and a directory to an identity. of doctors and other professionals who can help.
“An estimated 70 per The most difficult part is what advice to give the child. This largely depends on the cent of children who environment in which the child was raised. experience gender They may try to cover up for fear of emotional or physical reprisals. In an ideal dysphoria in Argentina world, the child should first see a are expelled from the professional psychologist for guidance. family home, punished Natalia underwent surgery to acquire a or sent somewhere female identity in December 2007, a few months after winning the court case. The to “forget” what they operation took place at a private clinic and are feeling” went well. Local media protected her identity. She now lives happily as a woman.
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e Factfile: All right at home? Promoting children’s human rights in family life
children out if they find they are unhappy • Children gain information that helps with a decision they have made, or change them understand what is possible, and their mind… what is not.
Children might make a • They learn to consider the consequences ’wasteful’ decision of certain actions: What might happen Children often make choices that their if... What happens when... parents feel are unwise or foolish – like choosing a toy that falls apart or that they • Children can try out their ideas on you,
Photo: ©2007 Melinda Nowak, Courtesy of Photoshar hardly play with. It can help to think of within the safety of your family. This Bucharest, Romania wasteful decisions that we have made… might be better than trying them out on the big wide world. The information below explains why They might want something encouraging children’s participation in they cannot have • Children are more likely to stick decision making makes sense in family life. Children might want their parents to stay to decisions that they have helped together rather than separate, or to stay to make… Children should not be put when their parents have to move burdened by unnecessary because of work. Even if children cannot • The more you have encouraged your responsibility or have what they want, they do like to be children to know their own minds and information consulted and to be told what decision has make their own decisions, the easier Children should not be burdened with been made, and why. There is a great deal they will find it to stand their ground if more information than they can cope of research which shows that children feel friends, or strangers, try to lead them with or understand. But children do like better for being listened to. astray. Children who are never allowed to know what is happening and why. If to say no to their parents will find it events that affect them… are not talked If they have their say, they’ll hard to say no to others. about, children may fill in the gaps in expect to have their way their knowledge with imaginings more Parents need to be clear about which decisions Reproduced with kind permission from worrying or frightening than the reality. they are prepared to negotiate and which they ‘All right at home? Promoting respect for Or they may blame themselves for events are not. They need to continue to make some the human rights of children in family life: that they are not responsible for. Parents decisions for children – in their best interests. A practical guide for professionals need to work out how much children They also need to let children make some working with parents’, (pp. 25-26) by need to know and how to explain it in decisions for themselves. And there will be Judy Miller, edited by Gerison Lansdown, ways they can understand. Young some decisions that parents will negotiate now out of print. Originally published by children often need to be shown things with their children, reaching a compromise and © Barnardo’s, Children’s Rights Office, as well as told about them. that takes into account all of their concerns. The Children’s Society, NCH Action for Children, NSPCC and Save the Children in It takes more time The benefits of involving 1999. All rights reserved. It is much easier, in the short term, to children in family decisions decide things for children. But without • When you listen to your children, you are their involvement, parents might get telling them that they matter. Their The evidence things wrong. And they will deny confidence and self-esteem grow. children the chance to think things In hospital trials, children as young through for themselves, weigh up the • You will learn important things from as five have shown that they are pros and cons, and begin to take them. They have ideas you need to hear able to decide how much pain- responsibility for their actions. and feelings and reactions you need to relieving medicine they need to know about. control their pain – and have kept Children might make a their doses within a safe limit. mistake • Only when children can express and They might choose an option that makes understand their own feelings and needs In a survey that asked children: them unhappy or puts them in danger. can they consider those of others. “If we wanted to make a better Parents need to remember that they still place for children to live in, what have parental responsibility to protect • When children learn to negotiate – and would you like us to do?” the top their child from harm and to promote compromise – they can begin to balance priority of the seven- and eight- their well-being, so if they can see that their needs against those of others in the year-olds questioned was: “more something will definitely be bad for their family. There is more cooperation and zebra crossings”. child, they say “no”… Parents can help less conflict.
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Child Rights Information Network (CRIN) Ibero-American countries set progressive youth rights agenda
First Convention of its kind defends rights of teenagers and young adults, but its passage has not been smooth.
By Rodolfo Albán Guevara, formerly the in the region today, and to encourage • States engaged in internal armed Coordinator of the Democracy Programme the recognition of young people as citizens conflict (Colombia): The right to of the Andean Commission of Jurists, entitled to rights. conscientious objection to military now working for the Constitutional Court service was fiercely contested as contrary of Peru. Many of the rights contained in the Youth to security policy because of the Rights Convention are not provided for in ongoing internal armed conflict that The Ibero-American1 Youth Rights any other international treaty. Its provisions requires “all Colombians… to bear arms Convention (IAYRC) sets out specific rights include the right to: when public necessity so requires”.2 for young people aged 15-24. The Convention, which came into force last • peace and a life without violence • Costs: Concerns about the costs of year, emphasises sexual and reproductive implementing the Convention’s and political rights, and recognises young • non-discrimination on the basis of provisions were also expressed. people as actors in development. language, religion, sexual orientation, physical aptitude, disability and It has so far been ratified by Costa Rica, economic resources Ecuador, Honduras, the Dominican Republic, Uruguay, Bolivia and Spain. • free legal defence, reporting of Any young person in these countries violations and equality before the law whose rights have been breached can invoke the Convention as a legal tool. • honour, intimacy and personal image (ie, protection from exploitation of their Why a Youth Rights image or practices which may degrade Convention? their personal dignity) Ibero-America is the only region in the world to have developed a Convention • creation of a family and free choice of specifically for young people aged 15-24, a partner a group that comprises 30 per cent of Ibero-America’s population. The need for • work, social protection, professional such an initiative arose from: training, housing, political participation, sex education and a healthy • the significant economic contribution environment that young people make to the region’s economy; • conscientious objection to military service
• the fact that political participation of • protection against the death penalty. students has been historically important for the development of democracy in Too progressive for some? the region; Some of the elements of the Convention were considered controversial by the • the fact that the three main causes of establishment: death among young people in the region are murder, traffic accidents and suicide. • The Catholic Church: The provisions on sexual and reproductive rights, including The IAYRC builds on the United Nations sex education at all levels of education Convention on the Rights of the Child and the right to form a family, met with (CRC) to extend legal protections beyond resistance by the church and other the age of 18 to young adults. Hopefully, conservative sectors of society because it will also help to overcome negative, they believed these provisions would paternalistic or purely utilitarian open the door to the morning-after pill perceptions of young people that prevail and gay marriage.
1. Ibero-America refers to Latin America as well as Andorra, Portugal and Spain 2. Article 165 of the Constitution
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It took seven years to negotiate the The next step is to raise awareness about More information: Convention due to this conservative the importance and benefits of the resistance. Civil society played a strong Convention in countries that have not yet Ibero-American Convention: role in overcoming these concerns by ratified it, and to share best practice in www.crin.org/Law/instrument.asp?InstID= lobbying politicians to raise awareness policy-making and programming for young 1410 about the importance of institutionalising people with organisations in other regions. the specific rights of young people. Organización Iberoamericana de Juventud Teenagers and young adults were strongly An obvious place to start would be Africa, (Ibero-American Youth Organisation): in favour of the Convention. which has a Youth Charter, since the www.oij.org/ continent faces parallel problems of What now? unemployment, a large informal African Youth Charter: Two organisations are lobbying for economy, and extreme, protracted www.crin.org/Law/instrument.asp?InstID= governments to ratify the treaty: the violence in some areas. 1389 Ibero-American Youth Organisation and the Andean Commission of Jurists. Hopefully Ibero-American countries will Comisión Andina de Juristas: There is currently no mechanism to continue to lead the way on this issue and http://www.cajpe.org.ope monitor the Convention, but ratifying set a shining example for others to follow. States are required to submit a report every two years to the Secretary General of the Ibero-American Youth Organisation.
“Arte & Parte” actors and peer education leaders in Paraguay wear makeup and costumes and blow up condoms to prepare for an educational skit. e Photo: © Population Services International, Courtesy of Photoshar
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Child Rights Information Network (CRIN) Children’s rights means citizens’ rights
Denying children political rights offends democratic principles, says Bob Franklin, in the context of the UK. Photo: ©David Levene/EveryChild. Per u.
By Bob Franklin, Cardiff University School • Children should not be prevented from The argument for the exclusion of children of Journalism, Media and Cultural Studies. making decisions simply because they from decision-making is little more than ill might make the wrong ones. It is thought through prejudice dressed up as The British philosopher Bertrand Russell important not to confuse the right to do “common sense”. wrote: “No political theory is adequate something with doing the right thing. unless it is applicable to children as well Some argue that children would cast their The case in favour of giving as to men and women.” But most people vote frivolously, but many adults do the children the right to vote seem to accept children’s exclusion from same or choose not to vote at all. voting as an article of ill-considered faith, Are children really capable of voting? If a sort of self-evident common sense that • Mistakes are learning experiences and they are, is it desirable that they do so? requires little justification. should not be viewed as wholly negative. John Holt, a child rights and education Children, like adults, grow through a reform advocate, answered both questions In democratic societies, the presumption process of trial and error. Decisions made with a resounding “yes”. must always be against exclusion, and the by adults are far from infallible, as burden of proof must rest with those evidenced by wars, nuclear weapons, Holt argued that everyone should have the who propose to disenfranchise. Excluding global warming and many more bad right to vote when their interest, knowledge children from the right to vote denies them judgements that have led to pain and and involvement in politics are sufficiently not merely citizenship rights but suffering. To deny children the right to developed to motivate them to do so. This also the right to be a citizen. make mistakes is hypocritical. If the does not mean that all children would have argument is really about competence the right to vote. The case for excluding children and young and not age, then it is not children who people rests on two related arguments: should be excluded but people who are Holt believed that few six-year-olds would deemed incompetent. exercise their vote, but many 10-year-olds • Children are irrational and incapable would, since “they seem to understand at of making reasoned and informed • Setting age limits on the right to vote is least as much about the world and its decisions, so it makes little sense to relativistic and arbitrary. Limits vary from problems as I or most of my friends did give them rights they are incapable country to country when it comes to when we left college”. of exercising. criminal responsibility, sexual maturity and political rights. The negative definition Evidence from two key studies (Greenstein • Children lack the wisdom born of of children as “non-adults” is simplistic. 1974; Dawson, Prewitt, Dawson 1977) experience, so they are likely to make bad From birth to 18, children encompass an suggests that Holt had a good point: decisions and mistakes. Society is simply enormous range of skills, competencies, protecting them from their own needs and rights. A 16-year-old is likely to • People acquire the ability to discuss, assess incompetence. have more in common with a 19-year-old and make decisions about politics much than a three-year-old, but according to earlier than popular opinion imagines. A rebuttal of the case that conventional accounts, the 16-year-old and excludes children from having the three-year-old are equally “children”. • The pace of political learning reflects, the right to vote There is no better example than that of at least in part, the expectations of a 17-year-old who dies fighting in a war performance embraced in that public • Children have rational thoughts and make before even having the right to vote. opinion. If adults acknowledged young informed choices. They often display very people’s abilities to discuss political sophisticated decision-making abilities – for • The exclusion of children from decision- issues, those capacities might be example, when dealing with a bully at making is unfair because they can do enhanced. school or an abusive parent. Some claim nothing to change the conditions that young people are ignorant of political affairs, exclude them. If incompetence was the Most children are enthusiastic about the but if this is true, it is a truth that extends issue, the stupid could grow wise, but possibilities of voting. Consider the to many adults. Democracy requires that children cannot prematurely grow old. following quote from Olive Stevens’ book, everyone should have a voice to influence This argument confuses particular children Children Talking Politics: Political Learning the decisions that govern their lives. with children as a group. in Childhood:
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“We’ve got to vote. I mean, us children. a. While it is true that research shows that Conclusion We’re not allowed to vote until we’re the electoral preferences of parents form eighteen, the government said that. But I a powerful influence on children’s voting The denial of political rights to children think we should have more say – in the patterns, these influences persist whether offends fundamental democratic principles. Common Market and things. We might we are 10, 20, 50 or 80 years of age. The division between voters and non-voters make the wrong suggestions, but at least To exclude only young people because of based upon age is incoherent. we’ve tried to be more mature in our ways.” parental influence is one-sided and unjust. Democracy should encourage as many Holt’s formula is attractive because it would b. If children had the right to vote and people as possible to become informed allow those young people who are enjoyed a greater responsibility for their about and actively engaged in the affairs interested in politics to help form decisions. affairs, they would be less susceptible to of their society. Everyone should be This “participation according to interest” parental influence. allowed to vote or join a political party or “creeping franchise” approach mirrors when their interest, knowledge and adult electoral behaviour. c. A secret ballot would assist children’s involvement motivates them to do so. autonomy. Objections to be overcome Of course, not all children would vote, and very young children with only a Despite the arguments in favour of “No political theory marginal interest in politics would allowing children to vote, there remain is adequate unless it is probably abstain. The sheer scale of the many obstacles: current exclusion of many millions of applicable to children young people is wholly unacceptable. • It might be argued that children are as well as to men more likely to vote on the basis of the If these are some of the possible personality of the party leader than on and women.” implications of the extension of franchise the policies of the parties, but adults Bertrand Russell, British philosopher to young people, bring it on! often do the same. And why not? The different personalities of party leaders are relevant considerations when assessing a party’s potential for achieving its manifesto commitments.
• It is sometimes suggested that those who support a youth franchise are imposing adult lifestyles and patterns of behaviour upon children and young people precociously. But they do not want to force children to do anything. On the contrary, they wish to create opportunities for young people to participate where previously they have been inappropriately excluded. It is adult opponents of child suffrage who currently force children to comply with their perceptions of what it is to be
“child-like”; namely innocent, irrational, Photo: René Collins. Elections in Paraguay incompetent, powerless and excluded.
• Opponents similarly suggest that some Countries where under 18s can vote see the right to vote as a panacea for all the difficulties which children and young Over 16s The Norwegian government is piloting people confront, but they have Austria, Brazil, Cuba, Ecuador, Germany a project allowing over 16s to vote in overestimated its significance. Of course, (in some states), Guernsey, Isle of Man, local elections the right to vote is not a panacea. Jersey, Nicaragua, Philippines (for Individuals must use their vote to municipal elections and married Over 17s complement their participation in pressure persons), Switzerland (in some cantons East Timor, Indonesia, North Korea, groups and a host of other community for cantonal and local elections. Sudan, Seychelles, Israel (local elections organisations if they are to maximise their only), United States (for some primaries) influence on democratic policy-making. Over 16s can vote in the following countries if they are employed: Bosnia [Sources: National Youth Rights • Finally there is, allegedly, the danger that and Herzegovina, Croatia, Montenegro, Association, National Youth Agency – parents might seek to influence their Serbia and Slovenia. UK, the Office of the Norwegian children’s electoral choices. This objection Ombudsperson for Children] can be met in a number of ways:
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Child Rights Information Network (CRIN) Children’s religion or belief: making an informed choice Some pointers for supporting children to answer some of life’s big questions.
By Asma Jahangir, United Nations Special While strict age limits may provide discrimination. However, it cannot be Rapporteur on Freedom of Religion or Belief. reassuring certainty, they do not fully taken for granted that all parents or consider the maturity and “evolving legal guardians encourage the “evolving Does a child have the right to choose his capacities” of the child. An immature capacities” of the child by providing or her own religion? If parents switch child in some countries may be granted objective information about other religions, can their children still practice full rights, while the rights of a mature religions or beliefs. this religion against the will of their child in others could be denied. parents? How might children be helped to • Education: Teaching religion should be make an informed choice? Should there International legal guidelines do not give carried out in a fair and balanced be strict age boundaries, or is a case-by- much direction. Indeed, documents manner. The Toledo Guiding Principles case approach better? These are tough detailing the drafting process for the on Teaching about Religions and Beliefs questions that many families and indeed International Covenant on Civil and in Public Schools provide excellent States struggle to resolve. Political Rights indicate that delegates practical guidance. wanted to leave the matter to national They call for a balancing act between the governments for determination. • Cultural implications: Children should rights of the child and those of the parent. be made aware of the implications of Is there an alternative? opting out of a particular religion in A child’s right to freedom of religion or A case-by-case approach – as supported by communities where this could lead to belief is enshrined in Article 14 of the Article 12 of the CRC – may be a better ostracism. Governments should United Nations Convention on the Rights solution. If the child’s maturity is in doubt, endeavour to eradicate prejudices and of the Child (CRC). a competent administrative or judicial conceptions that are incompatible with authority, with the help of expert opinion, freedom of religious belief, and to However, the same article also reaffirms can assess the maturity of the child in ensure respect for, and acceptance of, the rights of parents to provide direction relation to the issue. pluralism and diversity. to the child in the exercise of their right to freedom of thought, conscience and But this approach is not without its No child should be subject to coercion religion “in a manner consistent with the drawbacks. It may lead to increasing that impairs their freedom to adopt a ’evolving capacities’ of the child” [our tensions between the child and their religion or belief of their choice. As emphasis]. parents. It could also result in more litigation, reaffirmed by Article 3 of the CRC, the although this is not necessarily a bad thing best interests of the child should be National legislation varies widely with because it can provide an opportunity to the primary consideration. regard to children’s competency to decide develop constructive case law. whether they can change or reject their Ultimately, a child’s choice of religion religion. In some countries, under 10s may The following approaches might prove useful is restricted by their parents’ right to convert to a new religion if both parents for those dealing with this divisive issue: determine their child’s religion up to an agree or if one parent obtains a court’s age where the child is capable of doing approval. For children older than 10, • Free choice: It is of utmost importance so. But we must work to ensure that no conversion often requires both an that the child has freely chosen to change child is forced to follow a belief system application by the parents and the his or her religion. In a number of cases they do not adhere to. consent of the child. children, especially girls, have allegedly been abducted by members of a different Laws in other countries feature varying religious community, forced into marriage age limits. In some nations, children over and converted to a different religion. 14 can decide their religious affiliation for themselves, while children over 12 • Supporting parents and children: cannot be educated against their will Parents should be supported in in a religion different to the one they were exercising their rights in accordance with born into. And in others still, 15 or 16 is the best interests of the child, so that the legal threshold for reaching full they can play a full role in educating “religious maturity”. children about tolerance and non-
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“It is of utmost importance that the child has Opting out of religious education: the views freely chosen to change his or her religion.” of young people from minority belief backgrounds
In the UK, as in many other countries where religious education has a place in the education system, the right of parents to withdraw their children from such teaching (and related activities such as school worship) on grounds of conscience is enshrined in domestic law and in international human rights law. Such law considers that the existence of a right to opt out is sufficient to respect and protect the freedom of thought, conscience and belief of these students and their parents.
However, parental decisions to withdraw their children from religious education set students from minority belief backgrounds (including those who do not belong to any religion) apart from their peers during the school day. This division has the potential to shape young people’s relationship with their school and the wider community, as well as their religious understanding. In addition, it can affect their relationship with their parents and their belief community.
A research project by Queen’s University, Belfast, Northern Ireland, will examine the views and experiences of young people of minority belief with respect to opt-out policies and provision in schools, and explore the extent to which they believe that their right to freedom of thought, conscience and religion is thereby protected. The research addresses the following questions:
• Do young people from minority belief backgrounds feel that opt-outs respect their right to religious freedom?
• To what extent do young people feel that opting out negatively or positively affects their sense of belonging to their school and religious community?
• Do parents and communities consider that opt-outs in schools protect religious freedom?
For more information, contact: Dr Alison Mawhinney at [email protected] Photo: ©René Collins ’Salta, Argentina’
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Child Rights Information Network (CRIN) Man on a mission: Hossam Bahgat on freedom of religion in Egypt
Hossam Bahgat is the founder of the Egyptian Initiative for Personal Rights. Hossam spoke to CRIN about freedom of religion in Egypt, and his recent work in challenging forcible conversions among children.
How did you come to work in this others from “non-recognised” religions – How did the children feel about area of human rights? being forced to misrepresent themselves the case? as Muslims or Christians as a prerequisite I worked as a journalist with a national for obtaining these mandatory documents, We met with the children involved, but the newspaper in Egypt for three years. Being which are essential for accessing all basic case had been filed by their mother, as a journalist was a real eye-opener to the services in Egypt. children in Egypt cannot initiate court human rights situation in my country, proceedings until they reach 21. The particularly the lack of freedom of religion. After a five-year campaign, a new decree children clearly self-identified as Christian, was recently issued by the Interior which was the religion they grew up After working in the media, I founded the Ministry granting everyone the right to practising, especially since they continued Egyptian Initiative for Personal Rights, a obtain an ID card without stating their to live with their Christian mother after human rights NGO dedicated to freedom religious affiliation. We are now working their father divorced her and left the family. of religion, the right to health, privacy with the Ministry on policies to implement Neither the lower-level courts nor the and bodily integrity. Our main tools are the decree. Court of Cassation heard the views of the research, advocacy, campaigning and children on this essential matter, however, strategic litigation. Have you worked on any cases and the mother’s requests for the twins concerning children’s rights? to testify were consistently denied. Can you tell us a bit about freedom of religion in Egypt? We have been working on the case of In June 2009, the Court overturned the 14-year-old twin boys who had their decision to strip the mother of custody of We have three main areas of concern: religious affiliation forcibly changed to Islam her 14-year-old twins. For the first time, in official documents when their Christian the Court affirmed the right of a non- • Discrimination: Laws, policies and parents divorced and the father converted Muslim mother to retain custody of her practices that overtly discriminate to Islam. The mother lost custody of the child until the age of 15 – as stipulated by against religious minorities, such as the children by virtue of her religion. Egypt’s Personal Status Law – even when freedom to establish places of worship the child’s father converts to Islam. or appointments to public office and in The case highlights two related problems the family law system. These concern for children’s rights: When can children choose their Coptic Christians1 in particular. own religion? • If a child’s father converts to Islam, the • Persecution: The arrest, detention and child’s birth certificate is automatically Prior to this ruling, the Court’s position had prosecution of non-Muslims or those amended by the State, without the been that a child must be transferred to the who hold an interpretation of Islam that knowledge or consent of the child. The custody of their Muslim father and have their differs from that of the State. children often only find out when they religious affiliation officially changed to Islam turn 16 and go to get their ID card. at the age of seven, which is considered the • Conflict: The government’s response age of “religious maturity” by the Hanafi2 to sectarian tensions and violence, • Mothers are usually entitled to custody school of Islamic jurisprudence. which is often grossly inadequate. until the child turns 15. However, before the recent ruling, a Christian mother The Court did not accept the argument We recently made progress on the issue would often lose custody to the child’s that Christian-born children over seven, of identity (ID) cards. In Egypt, all citizens Muslim father. whose fathers convert to Islam, should must obtain an ID card when they turn enjoy the freedom to choose their religion – 16, which includes the holder’s religious After we lost in the lower-level courts, we as set out in some schools of jurisprudence affiliation. This resulted in many people were able to have the case heard by the and as argued by the Public Prosecutor. from the minority Baha’i community – and Court of Cassation – Egypt’s highest court. Unfortunately, the Court upheld its previous
1. Coptic Christians are Christian descendants of ancient Egyptians
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CRIN Review Amr Soliman © Photo: precedent that when a parent becomes receive religious education but only in their often more important than the litigation Muslim, the religion of their children is own faith. This is another issue for children phase. Identifying the case that will have automatically changed to Islam until they whose religion is automatically changed by the most strategic impact, examining the are 15, which is the age of puberty under the State when their parents convert as facts, weighing up the possible options the Hanafi school. According to the Court’s they must change their studies and be and building the strategy are essential. previous precedent and to the currently instructed in Islam even if they continue Where cases fail or backfire, it is usually applied interpretation of Shari’a, children to practice Christianity and live with their as a result of poor preparation. can choose to change their religious Christian mothers. affiliation once they attain the age of 15. The second thing I have learned is However, in practice there is no channel to How did you argue the case? patience! Some cases take years to resolve do this if someone is born a Muslim, so in in court. Plus, there is a very repressive reality it is only possible to convert to Islam. We referred to all relevant instruments in law governing how we choose and the case, including the UN Convention on conduct our activities. At the end of the While the case is a positive step forward, it the Rights of the Child (CRC), the African day, we live in an autocratic state where still does not address the root cause of the Charter and Egypt’s new Child Law, which interference and harassment are problem: the forcible conversion of Christian came into force last year. commonplace in our line of work. children in official documents without regard for the children’s or mother’s opinion The element of the case concerning the You can’t expect quick results. The when their father converts to Islam. automatic change of children’s religious advocacy and public campaigning you do affiliation is now pending with the African after the case are just as important as the This is a restrictive and conservative Commission on Human and People’s Rights. work you do before it. interpretation of the law that legitimises discrimination in the name of Islam. We Egypt has an opt-out on the African Charter More information: are pressing the government on this issue on the Rights and Welfare of the Child, in amendments to the Personal Status Law stating that it does not recognise the Egyptian Initiative for Personal Rights: that are scheduled to be brought before African Committee of Experts’ authority to www.eipr.org/en/ parliament later in the year. examine individual complaints, although individual complaints can still be examined CRIN’s toolkit on child rights and strategic What kind of religious education do by the African Commission. litigation: children receive in schools? www.crin.org/resources/infoDetail.asp?ID= Do you have advice for others 17127&flag=report Religious education is mandatory according involved in similar cases? to the Egyptian Constitution, but is CRIN’s briefing on the African Committee provided only in Egypt’s official religions, so When taking on strategic litigation, we of Experts: if a child is Christian or Muslim they will have learned that the planning phase is www.crin.org/RM/acrwc.asp
2. The Hanafi school of jurisprudence is one of four schools of law within Sunni Islam and is the school on which the Egyptian family courts rely when a matter is not codified elsewhere. 21
Child Rights Information Network (CRIN) Factfile: Curbs on children’s freedom of religion in Central Asia
States across the region discourage or ban children’s participation in religious worship and education – even in their free time.
By Felix Corley, Editor, Forum 18, a Christian Muslim children are, in effect, banned from Kyrgyzstan web and e-mail initiative on the freedom attending Friday prayers. The official excuse Children attending places of worship of thought, conscience and belief. is that it interferes with school, but research have faced harassment and girls wearing by Forum 18 found that they are prevented hijabs to school have been threatened Why are governments in Central Asia so from going to mosques at any time. or suspended. scared of giving children the freedom to choose and practice their own religion? Turkmenistan Officials conduct widespread “check-ups” Forum 18 has been informed by members on religious communities. One Protestant It is difficult to answer this question of smaller religious communities, which told Forum 18: “They had two main because governments refuse to engage do not include members of the Russian questions: how many ethnic Kyrgyz we in public discussions. It may stem from Orthodox church or Muslims, that the State have and what activities we have with a heritage of Soviet-era atheism, or the requires religious leaders to get official children. These are the things that most tendency for authoritarian regimes to written permission from both parents for bothered them.” try and tightly control every aspect every child who attends any religious event, of individuals’ lives. They may see even when one or both parents are present. Kazakhstan religious organisations as a threat to In 2003 the Education Ministry issued their own power. Police have raided various religious a directive that ordered school directors communities and interrogated and filmed “not to allow visits by students and Whatever the reason, the evidence of children alone, against their parents’ wishes. children to religious associations…”. their hostility is clear. Many States discourage or ban children's In one example, authorities threatened to In 2004 one region ordered schoolmasters participation in religious worship and lock a Jehovah’s Witness mother of four in a to conduct compulsory “educational education – even in their free time. psychiatric hospital, place her two under-age work” with children who attend places Both children and parents have been children in a children’s home, and deport of worship. threatened for attending mosques, the other two. churches or temples. In 2005, officials in another region Tajikistan issued a questionnaire asking children New or existing laws on religion put this Tajikistan passed a new restrictive law on about their religious beliefs and increasingly antagonistic approach on religion in April of this year. It requires both practices. Such surveys are illegal under open display. parents of any faith to give their permission Kazakh and international law. in writing for children aged seven to 18 to Uzbekistan have religious education. No provision is In 2009 the government failed in its The children of Baptists and Jehovah’s mentioned for children under seven, an attempt to pass a highly restrictive new Witnesses have been summoned and apparently deliberate omission that officials law on religion. An early draft text intimidated by police and local could interpret as making such religious required permission from both parents government committees. education illegal. for children to attend any religious event.
In April 2008, a teacher and the police Young girls are banned from wearing the Although the new law was vetoed, threatened the children of Baptists with hijab headscarf and a secret unwritten police raids have continued, especially imprisonment if they attended church. instruction prohibits children from visiting on places of worship without State The children were interrogated about mosques in school hours. registration, with children being what their parents taught them, what questioned about why they participate books they read, what films they watched, Education Minister Abdudjabor Rahmonov in worship services. what music they listened to, and what claimed in 2005 that wearing the hijab “is songs they sang. unacceptable in secular schools and violates More information the constitution and a new law on This campaign of intimidation spread from education,” even though the Tajik constitution visit: www.forum18.org one region to another, with children being does not bar wearing the hijab. Mr Rahmonov forced to sign statements saying they also claimed, without justification, that many would not attend mosques, Internet cafés pupils “spend evenings in mosques and or sports clubs in February this year. do not do their homework”.
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CRIN Review Photo: Y Care International Photo: Y Care Taking the “criminal” out of responsibility Thandanani Ndlovu from South Africa, was arrested for being associated with the perpetrator of an armed robbery when he was 16. He was detained for five months in jail awaiting trial. Since his release he has been supported by Amanzimtoti YMCA in KwaZulu-Natal and has been involved in Y Care International’s Youth Justice in Action campaign.
The criminal justice system is more I have followed debates about the Hardly any government departments hire about punishment than education minimum age of criminal responsibility. people with a criminal record. How can and rehabilitation. In South Africa, the minimum age is 10, they expect other people to employ us which I think is far too low. It should be at when they won’t employ us themselves? The conditions in prison are bad. I was least 15. The main thing though, is to What message does this send? in the same cell as adults. I often found improve the system itself. More resources myself sleeping on the floor as there were must be put into preventing young people I have one last thing to add: I went to 80 of us in one cell – and that is not entering the justice system in the first place the 10th Session of the UN Human Rights healthy or right for any human being. and making sure they receive support and Council in March. Governments are very encouragement from a young age. Once good at writing reports and making pledges I had been studying at the time I was they are in the system, they should be to commit themselves to do wonderful arrested, but I was unable to continue supported to develop skills and contribute things, but I want to see them follow my studies in the adult prison. I was positively to the community, instead of through and put these words into action. eventually moved to a juvenile prison being criminalised. Criminalisation just puts where I was offered education, but it young people in a worse situation when For more information on the Youth Justice wasn’t easy and I couldn’t get hold of the they come out of prison than when they in Action campaign, visit: books I needed. Despite this, I worked as went in. www.youthjusticeinaction.org/ hard as I could and was able to take exams for the first year of a course in I feel very strongly about this because More information marketing and management. when I came out of prison I had The Constitutional Court of South Africa nowhere to go. With the help of a social recently put an end to minimum A year later there were still no books worker, I eventually found a halfway house sentencing for children aged 16 and 17. and no one organised for me to take run by the YMCA, and they helped me to This will protect children from being my second year exams. I was so angry get back on my feet. But many young subject to harsh prison sentences without because I had wasted my time trying to people do not receive any support and no their individual circumstances being taken study. I have heard that the Department for company will employ them, first, because into account. Correctional Services now works with the of the stigma attached to having spent Department for Education to improve young time in prison, and second, because they To read more, visit: people’s access to education in prison, but haven’t had the opportunity to develop http://www.crin.org/resources/infoDetail.as at that time, it was virtually impossible. their skills and prepare themselves for life. p?ID=20877&flag=news
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Child Rights Information Network (CRIN) Making justice child friendly: guidance at last
A new tool will shed light on what child-friendly justice means in practice. Photo: Y Care International Photo: Y Care
By Sabrina Cajoly, the Co-Secretary of parents do not want her to accept, but decent housing. Hasan, five, is an the Group of Specialists on child-friendly Emma thinks that she should have a say in unaccompanied migrant minor. He is justice (CJ-S-CH) at the Council of Europe. her career plans and wants to choose her being detained in a European airport. own legal representative. Olga, 15, killed Michael is 10. His parents are divorcing her stepfather, who regularly beat her and What do all these children and young and fighting over his custody. Michael her mother. She is in pre-trial detention, people have in common? Life has brought wants to see the judge and say that he wondering what will happen next and them all, in some way, in contact with the wants to live with his mother. Tina, seven, whether she will be seen as a victim, justice system – be it civil, criminal or has been sexually abused, the doctor says, witness or author of domestic violence. administrative procedures. They are fictitious but she confusingly raises an accident in She also wonders what will happen to her characters reflecting real situations that are the bathroom. The judge is considering a after the trial, as her mother has rejected confronting professionals – lawyers, judges, re-enactment of the crime scene but fears her. Aleksandar’s parents are subject to an police officers, social workers and causing her further trauma. Emma is 16. eviction procedure. Their lawyer argues psychologists. Those professionals have a A famous modelling agency offers her that the eviction contradicts the child’s duty to ensure a place and voice for these an exclusive five-year contract. Emma’s best interests, in particular his right to children and young people appropriate to
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CRIN Review
information, representation and participation in judicial and administrative procedures, giving them a place and a voice at all stages. They will not only be a declaration of principles, but a practical guide to implementing internationally agreed standards. They will therefore build on existing international, European and national standards. The guiding thread of the European guidelines will be the best interests of the child.
Work began on the guidelines in 2008 when experts presented reports on child- friendly justice as a basis for discussions at conferences held in Stockholm, Sweden, and Toledo, Spain. The findings of these meetings will inform the Group of Specialists on child-friendly justice, which was established to draft comprehensive European guidelines on child-friendly justice in 2009. The Group of Specialists is a multidisciplinary group, including judges, prosecutors, psychologists, police officers and social workers, as well as representatives of the Member States. Its first meeting was held in Strasbourg in April 2009.
Important dates:
28-30 September and 8-10 December 2009: Group of Specialists meetings
7 December 2009: Hearing with leading international organisations and NGOs specialising in children’s rights. NGOs will be consulted throughout the drafting process, and possible ways of ensuring children’s direct and meaningful participation are currently being examined.
2010: The final guidelines should be adopted by the CoE’s Committee of Ministers.
For more information about the CoE’s their age and individual case, prioritising the The aim of the guidelines is to safeguard work on child-friendly justice, visit: best interests of the children concerned. the best interests of the child in all www.coe.int/childjustice circumstances where he or she is, for Because many Michaels, Tinas, Emmas, whatever reason, likely to be brought Olgas, Aleksandars and Hasans really do into contact with any sphere – civil, More information exist, and because so many other situations administrative or criminal – of the national occur where children are not seen or heard, justice system. Three of the CoE’s major “The right of children to be heard: or their views are ignored by the justice intergovernmental committees dealing children’s right to have their views taken system, the Council of Europe (CoE) is with civil law and administrative law will into account and to participate in legal currently drafting guidelines on child-friendly work together on the guidelines. and administrative proceedings”, authored justice in order to enhance children’s effective by Daniel O’Donnell for the UNICEF access to and adequate treatment in the More than just another set Innocenti Research Centre (April 2009). justice system. This work is being led in close of guidelines http://www.unicef-irc.org/cgi- cooperation with the CoE’s programme, The aim of the guidelines is to promote bin/unicef/Lunga.sql?ProductID=553 Building a Europe For and With Children. and protect children’s rights to
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Child Rights Information Network (CRIN) Disability: Support? Yes. Sympathy? No
Young people in Sierra Leone agree that people with disabilities may need help. But that doesn’t mean being stifled.
By John Conteh, Saidu Thoronka and Mariatu Bangura, Young Voices of Sierra Leone, a project by Leonard Cheshire Disability.
As disabled children in Sierra Leone, the Act and the UN Convention on the Rights biggest challenge we often face is the of Persons with Disabilities ratified as soon Young Voices project attitude of over-protective adults. It is the as possible. We urge NGOs to work same for many of our peers worldwide. towards this goal. The UN Convention on the Rights of Persons with Disabilities (CRPD) took We want to play and go out on our own. We also want more education to help effect on 3 May 2008. The Convention We want to hang out with our friends make us independent. We want to be expressly recognises the equality of and participate in community activities. self-sufficient and to break the bonds of persons with disabilities for the first But well-meaning parents often stop us poverty and dependency that hold us back. time in international law. from doing these things out of fear that it may adversely affect our health. We believe that children and young Young Voices helps young people bring people with disabilities should be given the UN Convention to life. The project With the utmost respect for caring adults, opportunities to make their own decisions, introduces people with disabilities both we don’t need your sympathy. In a world especially in education, movement, to the arguments that will help bring where we are often not even allowed to privacy, and healthcare. We should be about implementation of the provisions go to the toilet without adult supervision, treated as individuals capable of having of the UN Convention and to new we value our privacy deeply. We need a voice and making decisions. Like advocacy tools. our freedom! everybody else, we want to form our own identity and lead our own lives. Help us Young people involved in the project The United Nations (UN) Convention on to achieve our goals. set out the following tips for other the Rights of Persons with Disabilities young advocates. guarantees our rights to movement and privacy. We fully understand that, in More information certain situations, we face greater risks Ten point programme – than our non-disabled peers, but the Read about Young Voices and watch what you can do degree of protection that we need videos made by young people with should be decided only after considering disabilities at: There is no time for delay. The time our views. www.lcdisability.org/youngvoices to act on the Convention is now!
We often find that we have a very limited The UN Convention on the Rights of 1 Study and discuss the Convention. say about our own way of living. This Persons with Disabilities: 2 Campaign for implementation of privilege is afforded only to the few of www.crin.org/Law/instrument.asp?InstID= the Convention. us who have access to jobs and economic 1048 3 Lobby Governments and officials. independence. But even so, it still 4 Push disability issues in the media depends on age and support. ‘See Me, Hear Me: A guide to using the and write articles and blogs. UN Convention on the Rights of Persons 5 Support each other against We want to break the silence that with Disabilities to promote the rights of discrimination. surrounds disabilities in Sierra Leone and children’, authored by Gerison Lansdown 6 Protest when people with elsewhere. We want people to realise that for Save the Children UK and Sweden on disabilities are abused. disability does not mean inability. We want behalf of the International Save the 7 Link with Disabled People’s to reshape the way adults, communities, Children Alliance, May 2009: Organisations. families, employers, schools and decision- www.crin.org/resources/infoDetail.asp?ID= 8 Celebrate when barriers are lifted makers perceive disability. 19928&flag=report and discrimination is overcome. 9 Think of new ways to tell your We call on the government, NGOs and the Find the latest news and resources on stories. private sector to create a level playing field the rights of children with disabilities at: 10 Demand the right to be heard. for disabled people. In particular, we www.crin.org/themes/ViewTheme.asp?id=5 would like to see the National Disability
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CRIN Review Australia: make equality work! Differential pay rates for young people and adults are discriminatory.
By Gillian Calvert, New South Wales Commissioner for Children and Young People.
Is it fair for a 16-year-old waitress on for young people – even at 16 – to enter Australia’s industrial relations system minimum pay to earn 38 per cent less the adult workforce with valuable skills needs to recognise young people’s evolving than an adult on minimum pay doing the and experience. capacities through equitable conditions and same job? The answer would patently pay, while providing adequate protection in appear to be no, but that is exactly what Relying solely on age as the basis of view of their vulnerability. There is a need is happening across Australia and, what’s progression through a minimum wage for greater understanding of the role junior more, it is legal. scale does not reflect differences in skill rates of pay play in employment decisions, levels. It also ignores jobs in which and the possible effect of removing them. The country’s workplace relations laws have young people on junior wages are undergone major reforms over the past performing roles that require higher Over the next few years, the laws on junior 15 years, but junior rates of pay have not levels of skill than their peers, such as pay rates will once again undergo significant been reviewed since 1999, when they were supervising other young people. A changes. This presents an ideal opportunity left unchanged despite their discriminatory competency-based system that recognises to consider the appropriateness of an age- nature.1 Minimum rates of pay for young the context of the work – as exists in based wages system. workers – up to the age of 21 in many New Zealand and elsewhere – seems industries – are still based on age, typically a more appropriate model. Hopefully, in the not too distant future, as a percentage of the adult rate. young waitresses will be paid fairly There are certainly characteristics of according to the work they do, rather Defenders of the current system argue childhood that set young workers apart than the status they have been afforded. that young people don’t have the skills from adult workers, but this should not and knowledge that only on-the-job result in unequal pay for doing the same experience can bring. Many adults justify job. Rather, young people’s vulnerabilities Examples of prohibitions unequal pay by claiming that young require additional consideration of their on age discrimination people’s work is a stepping stone to needs, so that they have an equal standing in employment better paid work. These rationales need with adults in the workplace. to be challenged on the grounds of Belarus prohibits age discrimination fairness and to better reflect young However, while young people may need in wage rates. Its Constitution people’s “evolving capacities”. support or protection to get the most from provides that minors are “entitled their experience of work, the last thing to equal remuneration for work of Research by the New South Wales they need are regulations that stifle their equal value”. Commission for Children and Young development. There is a risk that promoting People has shown that young people equity for young workers could result in a The Netherlands offers statutory working moderate hours in jobs with rise in youth unemployment, particularly in guarantees for equal treatment in reasonable conditions have a positive the current economic downturn. employment, occupation and experience. Not only do they learn specific vocational training, irrespective of age. skills relevant to their job, they also gain talents they can use to benefit their New Zealand moved to stop communities. Moreover, others see, and A 16-year-old discrimination against children in can learn from, their participation. Australian waitress employment by abolishing youth wages in 2008. However, this applies Young people’s capacities are not on minimum pay only for persons aged 16 and over. necessarily influenced by age, but by earns 38 per cent less many social, emotional and cultural [Source: “Global report on laws factors. In the Australian experience, than an adult on protecting children from age work often begins informally within the minimum pay doing discrimination” (CRIN, 2009) See: family, moving to neighbours, the http://www.crin.org/resources/infoDet broader community and then into the the same job. ail.asp?ID=20816&flag=report] adult job market. It is not uncommon
1. Australian Industrial Relations Commission (1999) Report of the Australian Industrial Relations Commission Junior Rates Inquiry conducted under section 120B of the Workplace Relations Act 1996 (Cth), Canberra 27
Child Rights Information Network (CRIN) Marrying protection and autonomy
Establishing when people can marry requires a rights-based approach, not just the right age. e
Mumbai, India. Photo: ©2006 Rose Reis, Courtesy of Photoshar
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CRIN Review
By Angela Melchiorre, Research in determining competence to act. In addressing these dilemmas, the Coordinator for the Right to Education Therefore, more questions need to be Committee has provided countries with Project/ActionAid International. She asked about children’s capacities from an specific recommendations to: previously worked as Human Rights enabling rather than disabling perspective. Lecturer at the University of London, • Increase the minimum age when it is Human Rights Adviser for Italy at the Important questions too low UN in Geneva and New York, and as Here are a few important questions and consultant for the First UN Special issues to consider when thinking about • Ensure that the minimum age is “the Rapporteur on the Right to Education. minimum age requirements for marriage: same for boys and girls and closely reflect[s] the recognition of the status of Often lauded as the most comprehensive • Criteria and limitations human beings under 18 years of age as human rights instrument for the rights holders, in accordance with their protection of children, the Convention 1. What are the factors that determine evolving capacity, age and maturity” on the Rights of the Child (CRC) fails to the minimum age for marriage? clearly indicate where it stands on Balancing act marriage. This may not be surprising: 2. Is this minimum age absolute or are Discussions on child marriage have marriage is not a matter for children. there exceptions to it? focused on the protection of children Unfortunately, though, practice from harm, and rightly so. However, demonstrates that many children enter 3. How universal are these criteria and where older children are concerned, wedlock at a very young age. While an limitations? more consideration should be given to obvious case can be made against the other factors. While, on the one hand, forced marriage of young children, matters • Consideration of contexts and values a minimum age should protect children become more complex when the decision from the harmful consequences of child to marry is voluntarily taken by 16- or 1. How deeply entrenched is marriage marriage; on the other, it needs to 17-year-olds. In such cases, the evolving as an institution in local customary, recognise, and encourage respect for, capacities of the child (Article 5) and the religious and cultural practices? the autonomy and views of the young respect for his or her views (Article 12) people involved. A rigid minimum age need to be considered and balanced with 2. Is the application of worldwide does not appreciate this complexity. This the concept of protection from harm. standards possible? is why more attention needs to be paid to all the general principles of the CRC A complex issue • Aims and implications (non-discrimination, best interests of the There is no magic formula prescribing the child, his/her survival and development, 'right' balance for child marriage and 1. Is this age established to protect and his/her views), as well as his/her approaches to a minimum age in this area children or to recognise their capacity evolving capacities. vary. Analysis of States Parties’ reports to and entitle them to the full and free the Committee on the Rights of the Child exercise of a right? A rights-based approach which sets an reveals that several countries have no age range for marriage, and is consistent minimum age for marriage: some set it 2. What are the benefits and with the CRC general principles and very low; others admit that the law is consequences of establishing such a definition of the child, could offer a often ignored; yet others allow girls to minimum age? more realistic and sustainable approach marry at a younger age than boys.1 to this issue. • Consistency with the general The CRC does not mention age limits for principles of the CRC and the For more information, contact: marriage, but Article 1 defines a child as definition of the child [email protected] “every human being below the age of eighteen years unless, under the law 1. Is the minimum age discriminatory applicable to the child, majority is attained towards any group? earlier”. This proves especially critical in situations where children acquire majority 2. Is the decision in accordance with the through marriage, as they become adults best interests of the child? for the law of their country and therefore are no longer eligible for protection under 3. Is the free and informed consent of the the CRC. On the other hand, the rationale child included as a determining factor? behind granting majority through marriage lies in the recognition of capacity and 4. Are the evolving capacities of the child maturity. This certainly favours a more taken into account? emancipatory approach, challenging the commonly held view that 18 is the 5. Does the minimum age match with dividing threshold between childhood and the notion of childhood underlying adulthood and that age is the key element the CRC?
1. Examples of no minimum age for marriage include Lebanon, Marshall Islands, Mauritania, Palau, Saudi Arabia; cases of low or different minimum ages for boys and girls include Austria, Chile, Japan, Republic of Moldova, Romania, Suriname, South Africa, and Trinidad and Tobago. See A. Melchiorre, ‘At what age?...are school-children employed, married and taken to court?’, (The Right to Education Project/UNESCO-IBE, 2004), available on line at www.right-to-education.org
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Child Rights Information Network (CRIN) Early marriage in Yemen: through the eyes of a campaigner The power of the media: a campaigner’s guide to early marriage
By Husnia Al-Kadri, Executive Director of the within a year of marrying, often having influences, and where access to education is Gender-Development Research and Studies several babies within a short space of time, much better. North Yemen united with the Centre, Sanaá University, and experienced leading to serious health problems. More secular and Marxist South in 1990. In 1979, campaigner against early marriage. than 19 per cent of maternal mortality the government in southern Yemen set the occurs in early marriage. minimum age of marriage at 16 for girls Najood Ali was 10 years old when she and 18 for boys. walked up to a courthouse last year and It is different for boys. While it is hard for demanded a divorce from her 30-year-old them too, they do not experience the same Parliament had no choice but to agree to husband. I am sure you have heard about problems as girls. Boys report being the law, following Najood’s case and strong this – it was all over the international press. subjected to the will and demands of their campaigning by civil society, which put them The case in itself was a campaign. parents and extended family, in part under a lot of pressure. because they cannot yet support their wife, Najood had complained to her aunt and so must remain financially dependent on Religious split uncle that this man was treating her badly. their family. Sometimes they contribute to Sadly, the law was disputed by a group of They advised her to go to the local family work, but usually boys continue to go hard-line Islamists. It was initially approved, courthouse and demand an annulment. to school. Boys are often blamed by their but objections were raised before it was Who knows, maybe they were joking, but family for what they see as their wife’s published in the government’s official Najood went and, through the court, she ’shortcomings’, and they are not in a bulletin, which makes the law official. It is found two lawyers sympathetic to her position to defend their wife, or know how now back up for discussion in Parliament. situation. One of them, Shada Nasser, to treat her. These religious groups profited from the fact immediately agreed to take her case and that the ruling party is concerned about texted other activists. Pretty soon, the court Boys’ privilege elections due to be held in 2011 – the law is was filled with journalists. The judge When boys finish their education, they often unpopular with some sectors of society. granted the divorce straight away. Najood’s want another life. They married because of case was the most powerful factor in pressure from their family, but when they Some fundamentalists believe that because getting a minimum marriage age of 17 in have completed their education – maybe the Qur’an is silent on the issue of early Yemen. they went to university – they do not feel marriage, it permits the practice, although, their life is complete with their wife, so they of course, there are also many moderates For the good of the family leave and don’t come back. within religious groups. Marriage in Yemen is not about the union of two people. The aim is to bring someone More than 52 per cent of girls enter into We have a very vocal Youth Parliament, as an extra pair of hands to serve in the marriage before they turn 14 and a half which went to Parliament to campaign home where the extended family usually compared with just 6.7 per cent of boys, on this issue. The young people involved lives together under one roof. Early marriage according to a study I conducted with really know their rights and are very affects boys as well as girls, but to a lesser 10 other researchers in 2005 across 17 familiar with the Child Law, our national extent. The boy’s family pays a dowry to the governorates. The findings formed the basis law on children’s rights. girl’s family. There are many reasons for early of a campaign to establish a minimum age marriage: poverty, fear of girls being of marriage, which was initially approved by Lesson learned abducted and forcibly married, and so on. Parliament last year. In 1992 the minimum I have learned that repetition is key. Repeat But the most significant factor is cultural age of marriage was 15, but in 1998 the same thing, the same issue, over and tradition and the belief that the younger a Parliament revised this law to allow girls to over. We have to do this at many different girl is, the more easily she can be moulded marry as long as they didn’t move in with levels and in the language of the people we into a good wife. their husbands until they reached sexual are trying to influence. maturity. Some girls are married between Girls report being abused and marginalised. the ages of seven and 10. The only Although Najood originally stayed with an They say they feel humiliated and unable to exception is in Aden, in the south of the uncle, she is now back with her father and express themselves or communicate with country, which has a different history and is says she forgives him for what happened. their husband. They leave school before a more open society, having been exposed She plans to become a human rights lawyer they are married and usually fall pregnant to many different cultures and international or a journalist.
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CRIN Review Old before their time? Child carers in sub-Saharan Africa We know very little about the lives of child carers. A new project enabling child carers to conduct research into their own and each other’s lives plans to change this. Photo: Kaabong, Uganda, Kristopher Carlson
This research, which is funded by the Ford By the end of 2005, 12 million children Why has this phenomenon Foundation, was led by Glynis Clacherty and in sub-Saharan Africa were orphaned by arisen? commissioned by Save the Children UK. AIDS. However, hidden within this broad Given the high proportion of adults living category of orphaned and susceptible with HIV, the number of children providing Recall for a moment yourself as a child of children is a smaller but highly vulnerable care in the home is assumed to be eight. Now picture yourself having to take group of ’child carers’ – children who significantly higher than in the developed care of your younger siblings at that age through the death, illness or migration world, where it affects between two per because your parents have died or of a parent have become the primary carer cent and four per cent of all children. If we emigrated to find work. Can you imagine in the home. assume that five per cent of all orphans what this would be like? have a significant caring role (it may be Not only do these children carry out the fewer, but other non-orphaned children are While debates rage about how to usual domestic tasks that all children also carers), then we can estimate that determine children’s capacities for undertake, but they also bear the heavy over 850,000 children are carers. decision-making in their own lives, many responsibility of caring and providing for children are already taking on exceptional others – often tending to a dying parent While there are no reliable data on the responsibilities. The devastating effects of while looking after their younger siblings scale of the problem in Africa, there are the AIDS pandemic in Africa have resulted as well. clearly a number of factors fuelling the in vast and growing numbers of orphans growth in the number of child carers: and vulnerable children at a time when Save the Children conducted research in the continent is undergoing huge four African countries: Angola, Nigeria, • Increasing HIV prevalence and more demographic change. Uganda and Zimbabwe, to find out more. adults needing care.
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Child Rights Information Network (CRIN)
• Parents dying or migrating to find • But fortunately, there are some positive homes. Earning money to support their work means more children caring for effects for child carers, which include: family is a massive burden. Many sell small younger siblings. items around the village or work as porters 1. Gaining new skills, maturity and carrying goods from the market – one of • Reduced public spending on healthcare emotional strength the most difficult jobs – as they have to services. carry heavy loads. Others – both boys and 2. Developing a strong, loving bond with girls – work on building sites. In addition, • Limitations of NGO provision due to the care recipient they often fetch water or collect wood for precarious funding and government neighbours for a fee. Most of this work is policies promoting volunteer-reliant, 3. Improving the family income by done after school. After working, they home-based care. releasing others for work then have a heavy load of household work to attend to. • Conflict situations break down Despite the risks, for many children the immediate and extended family, as challenge of taking care of others may be The researchers conducted one exercise family members die or migrate. a source of self-efficacy, self-esteem and where children collected stones to resiliency. A number of factors that build represent the things that cause them In the face of all these pressures, Africa’s resilience in children who care, as well as stress. The researchers presented the traditional coping mechanism – the those who live with sick relatives or young carers with some stones, but the extended family – is being stretched beyond orphans, have been identified – for children were not satisfied because the its ability to respond. While relatives still step example, the quality of the relationship rocks were too small to represent their in to support these children whenever between child and adult; the provision of burden. They went out to get their own possible, increasingly the safety net provided healthcare or social grants; and the very large stones. by extended families is no longer there. In capacity within social networks to provide addition, the stigma attached to HIV and food, sustain livelihoods, and ensure that AIDS often prevents families from seeking children and adults feel included in the help. The result is that the burden of care is community. increasingly falling on children. More information is needed about the There is very little known about the views gender-specific issues faced by child carers, of child carers, and those being cared for, including the differing expectations for especially siblings or elderly people. boys and girls in caring roles and how Without reliable data, it is impossible to gender affects child carers’ ability to access design policies and programmes to meet support. Girls tend to play a greater caring their needs and defend their rights. role, so school attendance is more likely to However, the research that has been be impaired. Boys often receive less carried out in sub-Saharan Africa has support when carrying out traditionally highlighted some key findings. “female” roles.
• Children are likely to end up in caring Nigeria roles when there are no other support Save the Children and Fantsuam services available. Organisation researched the situation of school-going children aged 12 to 17. The 1. Girls are more likely to become carers children talked about their own lives and than boys, although many boys are then, after some training, went off to also carers research the lives of other child carers they knew. 2. Children in poor and low-income families are more likely to assume caring roles Two of the children in the core group of child researchers are looking after ill • Children who are carers can experience parents – one boy of 14 is looking after a number of negative outcomes: an ill father and uncle. Previously he had nursed his dying mother. Two other • Impaired educational attendance and children are heads of households, and performance the rest are looking after old grandmothers or grandfathers. Many of • Isolation from friends these children looked after their ill parents before they died. 3. Trauma and psychological distress These children are performing tasks such 4. Stigma and discrimination as cooking, bathing and fetching medicines while at the same time acting 5. Forced migration as the main income earners in their
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CRIN Review
In the exercise, the largest stones they • identify the kind of tasks child carers Zimbabwe and Angola, visit: collected represented “being the only one are doing http://www.crin.org/resources/infoDetail responsible for the whole family”. The .asp?ID=20684&flag=report second biggest ones were “unrelenting • assess the protection, care and support work”, and the third biggest symbolised requirements for child carers For more information, contact Lucy a “lack of food”. Hillier at Save the Children: • evaluate their access to support [email protected] The children had an incredibly strong sense of responsibility for those they care • implement interventions at community More information for. Amazingly, they did not resent their level that promote the resilience of, and duties. respond to the challenges faced by, child “Reversed roles and stressed souls: carers in Africa, and identify how these child-headed households in Ethiopia”, When they were asked to help with can be integrated into existing HIV and African Child Policy Forum 2008: further research, not only were they child protection responses http://www.crin.org/resources/infoDetail enthusiastic but they also had strong .asp?ID=20683&flag=reporthttp://www. opinions on what the focus of the • define and advocate for policy and crin.org/resources/infoDetail.asp?ID=20 research should be. They all knew at least programming interventions in Africa that 683&flag=report one other child carer they could interview, recognise and support child carers through and most knew two. national and Africa-wide advocacy.
The next steps To download the literature review, which The information gathered will be used to: also includes information on Uganda, nstschade.com .er
Guinea-Bissau, Farim, 2005. Collecting silt for the production of salt. Photo: Ernst Schade: www
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Child Rights Information Network (CRIN) FOLLOW-UP: Defeating anti-social technology: positive moves in Belgium In a follow-up to our last issue, Belgium takes successful action to prevent the spread of an unwanted new technology.
By Ankie Vandekerckhove, former • The reported damage and painful effects On a more positive note, our Belgian Children’s Commissioner for the are a form of violence, particularly for recommendation to local councils led to Flemish community. younger children, and are thus unlawful new police regulations. Some 40 councils (CRC, Article 19). speedily introduced a ban, while others said On a beautiful Sunday afternoon in February they would wait for federal legislation to 2008, I read about a disturbing new In our campaign, we called for the take further action. technology being used by small businesses following: to scare children and young people away The Federal Parliament introduced several from public spaces where adults do not want • A multidisciplinary approach. It is not resolutions supported by the various them. The ’Mosquito’, which made its just public order that is at stake, but political parties (except the extreme right). entrance in the UK, is an electronic device also the well-being of children and The Minister of Internal Affairs also that emits a high-pitched, and reportedly young people and their right to public announced he would investigate a possible painful, sound audible only to young people. space. We targeted different ban. All initiatives made reference to the departments and ministries such as CRC arguments. A new law to ban all The introduction of this anti-social technology Health, Internal Affairs, Youth & Welfare similar devices is currently pending. seemed in line with the British trend of and Urban Planning. Further investigation of some aspects of treating young people as “unwanted pests”. the law is still needed – bizarrely, including Unfortunately, some policy-makers in the • A clearly formulated legal ban, including a European Union (EU) check on the free Netherlands also agreed that it was a simple, well-defined sanctions and monitoring. movement of goods – but the law should cheap and effective solution. I was determined We argued that it was essential for face a vote soon. to see that Belgium did not follow suit. monitoring to include young people because otherwise they may not know This campaign was one of our most I joined forces with the Children’s Rights where to lodge a complaint. Children successful in recent times and only involved Commissioner for the French speaking must be involved in monitoring the ban’s a limited amount of research and energy. community to investigate the matter. We implementation because adults cannot Most of the political parties immediately brought this worrying trend to the attention hear the device. took a stand against the device and of all possible policy-makers – including the followed our recommendations. It was very Regional and Federal Parliament, local • More support for youth centres and rewarding to receive such a positive community councils and the press – as it public spaces for young people to gather reaction, unlike the feeble excuses offered was unclear what level of government had and engage in sports, culture or simply by many policy-makers in the UK and the the authority to address the problem. We to hang out and chat. Netherlands. We hope our actions can focused on the following arguments against inspire similar campaigns in other countries the Mosquito, urging decision-makers to We were delighted to receive immediate to ban this – and any other – anti-social take a positive and supportive attitude positive feedback from policy-makers, technology aimed at young people. towards young people: NGOs and youth organisations. The Flemish Minister for Culture, Youth and To read our previous issue of the Review, • It is against the best interests of children Sport made a clear statement in the “Children’s right to the city”, which covered and young people (United Nations Flemish Parliament in support of our quest how the ‘Mosquito’ is being used in the UK, Convention on the Rights of the Child for a legal ban, saying that society needs visit: (CRC), Article 3). It has no pedagogical to stop stigmatising young people. http://www.crin.org/resources/infoDetail.asp value whatsoever. ?ID=18421&flag=report On the other hand, the response from the • It is a discriminatory device, as it works European Commission was very For more information: against all young people irrespective of disappointing. The Commission delegated their behaviour (CRC, Article 2). We responsibility for any initiative to Member Buzz-off website: acknowledge the fact that a minority of States. The few MEPs (Members of the http://www.nya.org.uk/information/109482/ young people can at times disturb “public European Parliament) that did support the buzzoff/ order”, just as adults do at times, but we initiative were unable to get enough do not believe that dispersing all young signatures to start a debate. people constitutes a solution.
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CRIN Review Child rights puzzles
Wordsearch S THG I R E J OP I N I ON The object of this wordsearch is to find and circle all NDVVQ EMNVAWWE PD of the words at the side hidden in the grid. The words P I TSUVAYSRMHCCJ may be written horizontally, vertically or diagonally. ASOJOOTSNTON I OS CHILD RIGHTS VCJVL LULXIDR TNC EVOLVING RRCER VRCLCEE SVH CAPACITY CRIN Z I KGV I IMI I E S UE I JUSTICE RMEAY NT JNPRP JNL FREEDOM CONVENTION DIVSTGYYVAFENTD PARTICIPATION WN YWN E G T N TWC R I H RESPECT AGE CAPAC I TY L I T T KOS DISCRIMINATE WTBCR I NAROUU SNZ MATURITY EXPRESSION ZEZ I H AWTQNFC SGR OPINION YDINTERNATIONAL LAW INTERNATIONAL MBEXP RESS IONKGM
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35 Information
The Child Rights Information Network A website Bookmark CRIN’s website to learn more, or (CRIN) is a global network promoting Updated regularly, the website contains email us to contribute news or information. information sharing and action on references to thousands of publications, child rights. We press for rights, not recent news and forthcoming events as CRIN is supported by the Tides charity, and are guided by a passion well as details of organisations working Foundation, Swedish International for putting children’s rights at the worldwide for children. The site also Development Cooperation Agency (SIDA), top of the global agenda by includes reports submitted by NGOs to the Oak Foundation, Plan International, Save addressing root causes and promoting UN Committee on the Rights of the Child. the Children Sweden and UNICEF. systemic change. CRIN also offers two thematic websites on rights based programming and violence Previous issues The UN Convention on the Rights of against children. CRIN Review 22, September 2008: the Child (CRC) is our guiding Children’s Right to the City; framework, and we believe it offers CRIN also hosts the websites of: The NGO the best bluprint for children’s Group for the Convention on the Rights CRIN Review 21, November 2007: A empowerment and emancipation of the Child, the European Network Generation On: Enforcing children’s rights; from harm and injustice. of Ombudspersons for Children (ENOC), the Better Care Network (BCN) and the CRIN Newsletter 20, February 2007: CRIN’s activities are based on the European Children’s Network (EURONET). Child Rights and Emergencies; belief that information is a powerful tool for realising children’s rights. CRIN An email service CRIN Newsletter 19, May 2006: distributes news, events and reports, CRIN offers a number of email updates, Children and Violence; lobbies, enables advocacy and in English, French, Spanish and Arabic, promotes knowledge sharing and as well as thematic updates. The main CRIN Newsletter 18, March 2005: coordination. CRIN participates in CRINMAIL is sent out twice a week and Rights Based Programming with Children: international child rights coalitions and provides information on the latest news, an introduction; advocacy groups, supports campaigns reports and events on child rights issues. and makes the UN and regional To subscribe or read online, go to: CRIN Newsletter 17, May 2003: mechanisms more accessible to those www.crin.org/email. Children’s Rights and the Private Sector; lobbying for social change. A review CRIN Newsletter 16, October 2002: Published yearly, the Review (formerly Children and Young People’s Participation; the CRIN Newsletter) is a thematic publication that examines a specific CRIN Newsletter 15, March 2002: issue affecting children. Mainstreaming Child Rights;
Information about child rights in other CRIN Newsletter 14, June 2001: languages is available at the links below. The Special Session on Children;
Arabic CRIN Newsletter 13, November 2000: http://www.crin.org/arabic/index.asp Children and Macroeconomics. French http://www.crin.org/francais/index.asp CRIN Newsletter 12, March 2000: Spanish Education. http://www.crin.org/espanol/index.asp
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