26 UN convention on the rights of the child- 1989

Varalaxmi Moganty

Table of contents

Learning outcomes
Introduction
Objectives of UN Convention on the rights of the child (UNCRC), 1989
Provision for Rights of Child in UNCRC, 1989
Summary

Learning outcomes

This chapter helps the students to know about the major international convention on the rights of child – UNCRC 1989
By doing with this modules students will come to know that this is a significant Convention binding the state parties to provide legal measures to see the comprehensive development of the children of all nations.

Introduction

“The child, by reason of his physical and mental immaturity needs special safeguards and care including appropriate legal protection before as well as after birth”. –Declaration on the rights of the child, 1959.

The child cannot express as an adult of its pain and hardship. “Health is a state of complete physical, social and mental well-being and not merely an absence of disease or infirmity” says WHO. Due to poverty, parental illiteracy, social and economic backwardness nations many a children today are unable to be born healthy and develop in full sense. Projections on child statistics are very alarming.

Almost 70 million children may die before reaching their fifth birthdays – 3.6 million in 2030
Children in sub-Saharan Africa will be 10 times more likely to die before their fifth birthdays than children in high-income countries
Data from a range of low- and middle-income countries show that around 120 million girls under 20 years of age (about one in 10) have been subjected to forced sexual intercourse or other forced sexual acts.
Globally, an estimated 230 million children currently live in countries and areas affected by armed conflict and tens of thousands of children each year are recruited and used by armed forces and armed groups 168 million children (representing 11 percent of all children) are engaged in child labour with 50 percent working in hazardous conditions.
About one-third of women aged 20–24 years in the developing world were married as children and approximately 30 million girls are at risk of female genital mutilation/cutting (FGM/C). Approximately 2 million children continue to live in residential care instead of with families

International states thought of child’s protection from these and many hazards since a long time. The United Nations Convention on the rights of the child, 1989 came into force by taking an initiative from earlier conventions. The child labour convention adopted in 1919, Geneva declaration of the rights of the child 1924, Universal Declaration of Human rights 1948, Declaration of the rights of the child adopted by the General Assembly on 20th Nov1959, Minimum age convention 1973 No 138, International Convention on Economic social and cultural rights, 3 March 1966, International Convention on Civil and Political rights 23 March 1968, Declaration of Alma Ata in 1978, Convention on the elimination of All Forms of Discrimination Against Women (CEDAW) 1979, Declaration on the right to development, 1986, Convention on the rights of the child adopted and opened for signature, ratification and accession by general assembly resolution 44/25 of 20 November 1989 (entered into force 2 September 1990 in accordance with Article 49). Also World Summit 1990 and The worst forms of child labour convention 1999 came into force to protect the right of the child affected due to various socio-economic and cultural conditions of many countries.

3. Objectives of UN Convention on the rights of the child (UNCRC), 1989

Recognition of inherent dignity and of equal and inalienable rights for the child.
Entitlement of rights to all without discrimination of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
“Special care and assistance” for the child owing to its’ physical and mental immaturity” and “appropriate legal protection” before and after its birth.
Aiming at promotion of social progress and better guards of life.
To see that the child is brought up in family environment, in an atmosphere of happiness, love and understanding.
To see that family as a fundamental group be afforded the necessary protection and assistance such that it stands for well-being of all, particularly children.
To see that the child lives as an individual with the spirit of peace and ideals.
Giving due importance to the traditional and cultural values to help harmonious development of child.
Sensing the need that “there are children living in exceptionally different conditions all over the world who need special attention”.
Recognition for the need for international co-operation everywhere with particular reference to the children in developing countries.

4. Provision for Rights of Child in UNCRC,1989

The convention on the rights of the child, taking an initiative from earlier conventions and certain legal principles related to the welfare and foster placement and adoption and referring itself to the minimum rules for the administration of justice, and also declaration on the participation of women and children, developed its sacred goals and objectives. It aims at such rights of the child which will be “the foundation of freedom, justice and peace” ‘treating all the human beings as members of the human family” (Preamble CRC, 1989).

Keeping in the view these aims, the text of the convention is dived into three parts. The Part I deals with the nature of rights described in 41 Articles; Part II deals with the progress report of child by parties to the convention. Articles 42 to 45 deal with the establishment of select committee with members of high moral standing and its functions. The countries should submit report within two years of the entry into force of the convention and thereafter for every five years to the select committee.. The Part III that constitutes Articles 46-54 deals with the proposed amendments, by state parties, that may be enforced basing on the majority of states adopted them. Hence according to the convention once a state (a nation) becomes a party to the convention it is obligated to see that following provisions for the rights of the child are ensured in its national states. Before entering into the details of the rights assured in the Convention one has to look at one significant aspect of convention. Through Article 3 of Part I of the convention importance given to child is explicit:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

There are 41 Articles in the part 1 of the convention stating and detailing the rights of the child. For the sake of convenience the present study is done looking at the rights under four categories as – ‘Right to survival’, ‘Right to development’,’ Right to participation’ and ‘Right to protection’. We shall now go into the details of the provisions under these four categories of rights for the child. We will see further, the obligation of the state parties to convention to provide for the rights in the four categories the children of their nations.

A. Essential Articles (for all categories of rights):

Definition of the child:

As per the convention on the rights of the child, “a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier” –Article 1

Right to equal treatment

The convention provides for child’s right to equal treatment through its Article 2 (1) that states that the state parties to the convention shall respect the child without discrimination, irrespective of child’s or his or her parent’s / legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth, or other status. The convention also takes appropriate measures to protect the child against discrimination or punishment on the basis of the status, activities, expressed opinions or beliefs of the child’s parents, legal guardians or family members-Article 2 (2)

4.1. Right to survival and health:

The convention provides for child’s right to survival, life, and standard of health, nutrition, adequate standard of living and identity, name and nationality and equal treatment.

Right to life:

The convention makes the state parties to recognize every child’s inherent right to life (Article 6 (1)) and to ensure the maximum extent possible the survival and development of the child (Article 6 (2)).

Right for parental care:

Makes parties to the convention to ensure the child with care from parents, legal guardians-Article 3 (2)
Ensures that such care shall conform with the standards established by competent Authorities- Article 3 (1)
Makes parents or others legally responsible for the child to provide appropriate guidance in a manner consistent with the evolving capacities of the child- Article 5

Right to preserve identity, family relations name, nationality

Respects the child’s right to preserve his or her identity, nationality, family relations- Article 8 (1)
Provides for appropriate assistance and protection when a child is illegally deprived of his/her identity- Article 8 (2)
Sees that the child shall not be separated from parents against their will unless the judicial review determines so in such cases that involve neglect or abuse of the child by parents-

Article 9 (1)

Obligates state parties (under Article 9 paragraph (mentioned above) to treat the applications by a child or his/ her parents to leave a state for the purpose of reunification in a human and positive sense- Article 10(1)
To take measures to combat the illicit transfer and non-return of children abroad- Article 11(1)
To promote bilateral or multilateral agreements in the above referred- Article 11(2)
Provides for appropriate protection for a child who is considered as a refugee in accordance with international law or domestic law- Article 22(2)
Provides for the child to trace the parents or other members of the family of any refugee child through intergovernmental or non-governmental organization- Article 22(2)

Right to standard health, standard living and nutrition:

Makes state parties to recognize the right of the child to the enjoyment of highest attainable standard of health and to provide for facilities for the treatment of illness and rehabilitation of health- Article 24 (1)
Provides for the full implementation of this right- Article 24 (2) in particular:
- To diminish infant mortality (2(a))
- For primary health care (2 (b))
- Nutritious food, clean and drinking water, to combat disease and malnutrition, environmental pollution (20(c))
- For appropriate pre-natal and post-natal health care for another (2 (d))
- To provide information and education of basic knowledge of child health and nutrition, of the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents (2(e))
- To develop preventive health care, guidance for parents and family planning education and services (2(f)) and
Provides for care to abolish traditional practices prejudicial to the health of children-

Article24 (3)

Provides for a periodic review of the treatment for the purpose of care, protection of his /her physical or mental health –Article 24 (3)
Recognizes the right of every child to a standard of living for the child’s physical, mental, spiritual, moral and social development- Article 27 (1)
To secure conditions of living- Article 27 (2)
Provides for measures to assist parents and others for child’s nutrition, clothing and housing-

Article 27 (3)

Takes measures for recovery of maintenance for the child from the parents or other persons who are within the state and from abroad; also holds that state parties shall promote accession to international agreements- Article 27 (4)

Rights for the disabled child

Recognizes that a mentally or physically disabled child should enjoy a full and decent life, in conditions, which ensure dignity, promote self-reliance and facilitates the child’s active participation in the community- Article 23 (1)
Recognizes that special care and assistance be provided free of charge subject to available resources to the eligible child- Article 23 (1)
Provides for effective access to education, training, health care services, rehabilitation services, preparation for employment opportunities and recreation opportunities conducive to cultural and spiritual development- Article 23 (4)
Obligates state parties to promote the spirit of international cooperation, to exchange appropriate information on preventive health care, methods of rehabilitation, education and vocational services keeping in view of the needs of developing countries- Article 23 (4)

4.2. Right to development

This category of rights includes child’s rights to:

Parental Support for early childhood development
Adoption /alternative care
Provisions for refugee child
Social security
Education
Respect for child’s personality
Leisure
Recreation
Cultural Activities

Right to parental support for early childhood development

Obligates states parties shall to ensure the maximum extent possible the survival and development of the child- Article 6 (2)
Provides for parental responsibility for upbringing and development of the child- Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern – Article 18 (1)
Insists State parties to render appropriate assistance to parents and legal guardians in performance of their child-rearing responsibilities and to ensure the development of institutions and facilities and services for children-Article 18(2) and
Obligates state parties to take appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities – Article 18(3)

On adoption / alternative care:

Provides for special protection by the state to the children who are temporarily or permanently deprived of his or her family- Article 20 (1)
Provides for alternative care for the child in accordance with the national laws- Article 20 (2)
Provides for foster placement and also to pay due regard when considering solutions, to the child’s ethnic, religious, cultural and linguistic backgrounds- Article 20 (3)
Recognizes and permit the system of adoption (Article 21). And in this regard further.
- Ensures adoption of child is authorized in accordance with applicable law (21 (a))
- Recognizes the inter-country adoption when the child cannot be placed in a foster or adoptive family in the child’s country of origin (21 (b))
- Ensures that the child in the country adopted enjoys safeguards and standards equivalent to those of national adoption (21 (e))
- Takes measures that inter-country adoption does not result in improper financial gain (21(d)
- Promotes bilateral or multilateral arguments to ensure the placement of child in another country is carried out by competent authorities- Article 21(e)

Rights of the refugee child

Takes the measures for a child who is seeking refugee status, whether accompanied or unaccompanied by his her parents to receive appropriate protection and humanitarian assistance- Article 22 (1)
To provide cooperation in any effort by the united nation’s and other intergovernmental organizations to trace the parents or other members of family, of a refugee child- Article 22 (2)

Right for social security

Makes state parties to recognize for every child’s right to benefit from social security, including social insurance in accordance with their national law- Article 26 Right to education
Article 28 makes the parties to the convention to recognize the child’s right to education.
Further, basing on equal opportunity to be given for the child the convention:
- Makes primary education compulsory
- Encourages the development of secondary education o Makes higher education accessible to all
- Makes educational and national information and guidance available and accessible to all children
- Takes measures to encourage regular attendance of schools and to reduce the drop-out rule

Right to respect for child’s personality

Article 29(1) deals with the guidelines to be followed by state parties for the development of the child through child’s right to education that has
Respect for child’s personality, talents, and mental and physical abilities
Respect for human rights and fundamental freedoms
Respect for child’s parents, cultural identity, language and values of country
Understanding of ‘peace’, ‘tolerance’, ‘equality of sexes’, friendship among all
Respect for natural environment

Right to leisure and recreation

Recognizes the child’s right to leisure, to engage in play and recreational Activities, to participate in cultural life and arts- Article 31(1)
To participate fully in cultural life –Article 31 (2)

4.3. Right to participation

This category of right to participation includes:

Respect for the views of the child
Right to freedom of expression
Right to access for appropriate information, and freedom of thought
Right to conscience and religion etc.,

Right to expression

Provides for expression of his or her own views giving due weight in accordance with the age and maturity of the child- Article 12 (1)
Provides for an opportunity to be heard in any judicial and administrative proceedings affecting the child- Article 12 (2)
Provides for the right to freedom of expression that includes right to seek, require and impart information and ideas of all kinds through any media of child’s choice-Article 13 (1)
Holds that the above right to expression is subject to such restriction that it respects the rights of others-Article (13(2a) and protects the national security or of public order-Article (13 (2b)

Right to Conscience and religion

Respects the right of child to freedom of thought, conscience and religion- Article 14 (1)
Respects the rights and duties of parents and legal guardians to provide direction to exercise this right- Article 14 (2)
Provides for child’s freedom to religion subject to limitations to protect the safety order, health or morals or the fundamental rights and freedom of others- Article 14 (3) Right to freedom of association
Recognizes the child’s right to freedom of association and peaceful assembly- Article 15 (1)
Holds that no restrictions be placed on the exercise of these rights other than those imposed by law- Article 15 (2)
Prohibits unlawful attacks/interferences and states that no child be subjected to arbitrary or unlawful interference with his/her privacy, family, home or correspondence- Article 16 (1)
Provides for child with his/her right to protection against the interferences or attacks- Article 16 (2)

Right to access to information from media

Provides to recognize the important function of media from diversity of national and international resources- Article 17(1). To this end it also provides cultural benefit of the child in accordance with the spirit of Article 29 that deals with right to education as preparation for development of personality –Article 17 (a)
Encourages international co-operation- Article 17 (b)
Encourages production of children’s books- Article 17 (e)
Encourages mass media to have regard to the linguistic needs of child from minority groups-

Article 17 (d))

Encourages the guidelines appropriate for protection against information and material injurious to his/her well-being- Article 17 (e)

Right to respect for child’s background

Provides for due regard for child’s ethnic, religious, cultural and linguistic background-

Article 20 (4)

Provides for right to enjoy his/her own culture, to prefer and practice his/her own religion, use his/her own language- Article (30)
Provides for, right to participate in cultural, artistic life and also for equal opportunities in this regard- Article 31, (2)

4.4. Right to protection

In fact the term “child abuse” is inclusive of all sorts of exploitation of the child; it denotes, mistreatment, cruelty, ill-treatment, violence, maltreatment, neglect and misuse of the child. However, the convention specifies each right to freedom from all sorts of ‘ human wrongs’ towards child and above all certain measures by state parties against exploitative use of children, through the provisions for child- care as:

Right to freedom from economic exploitation:

Recognizes child’s right to protection from economic exploitation and from performing any work that is likely to be hazardous or to interfere with child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development- Article 32(1)
Provides for legislative and administrative measures to provide for minimum age through, Article 32 (a); for appropriate regulation, 32 (b) and for appropriate penalties with reference to employment of children, 32(c)

Right to protection from illicit use of drugs:

Provides for appropriate measures including legislative, administrative, social and educational measures to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties and to prevent the use of children in the illicit production and trafficking of such substances- Article 33

Right to freedom from sexual abuse:

Provides to protect the child form all sorts of sexual exploitation, sexual abuse- Article 34. Also provides for appropriate national, bilateral and multilateral measures against, a) coercion of child, b) exploitative use of child in prostitution and c) use of children in pornographic performance or materials

Right to protection from sale of or traffic in children:

Provides for national, bilateral, multilateral measures to prevent the abduction of the sale of or traffic in children- Article 35

Duty of state to protect the child from other forms of exploitation:

Article 36 of the convention holds that state parties should protect the child from other forms of exploitation

Right to protection from inhuman or degrading treatment and neglect:

Ensures protection, from torture or cruel or inhuman degrading through Article 37 (a); (b) provides liberty in conformity with law, (c) provides for respect for the inherent dignity and (d) makes access to legal and other appropriate assistance as well as the right to challenge the legality of deprivation of liberty

Right to protection from armed conflicts:

Provides for protection of children in case of armed conflicts to ensure respect for rules of international humanitarian law applicable to them through Article 38 (1); (2) ensures that children who have not attained the age of fifteen do not take part in hostilities, (3) takes measures to protect the children who have not attained the age of fifteen years from being recruited into their armed forces and (4) ensures protection of children who are affected by armed conflicts

Provisions for state measures for reintegration of victims of any neglect:

Insists states parties to take all measures to promote physical and psychological recovery and social reintegration of a child who is a victim of any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment, or armed conflicts- Article 39

Rights of alleged/accused child for dignity

Obligates state parties to recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of child’s sense of dignity and worth- Article 40 (1)
Article 40(2) (a) states that no child shall be alleged as or accused of as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law. And Article 40 (b) provides with certain guarantees for every child alleged or accused of penal law as:
- To be presumed the child as innocent until proven guilty according to law
- To be informed of charges against his/her and to have appropriate assistance for the preparation and presentation or his/her defence
- To have the matter determined without delay
- Not to be compelled to give testimony or to confess guilt
- To provide for a review of higher competent judicial body, is considered to have infringed of penal law
- To have free assistance
- To have privacy at all stages or proceeding

Provision for minimum age against infringement of law

Article 40(3) provides for (a) establishment of minimum age for the children regarding infringement of law (b) appropriate measures to deal with such children and to provide legal safeguards

4.5. Other provisions.

Provision for other dispositions as guidance, foster care etc

Article 40 (4) obligates state parties to provide for children a variety of dispositions such as care, guidance and supervision orders; counselling probation; foster care; education vocal training; alternative institutional care proportionate both to their circumstance and the offence.

Scope for more conducive provisions within or without convention

Article 41 states that nothing in the present Convention shall affect any provision which are more conducive to the rights of the child and which may be contained in (a) the law a state party; or (b) International law in force for the state

Violence to children: A National Crime

4.6. Obligation of international states for transmission of reports

When Part I, of the convention deals with the right of the child, Part II of the conventions makes the parties oblige to the select committee constituted as per the rules prescribed in the Article 43 of the conventions, and to submit a report within two years after the entry into force of the Convention as per Article 44 (1) (a) and thereafter every five years as per Article 44 (1) (b). And Article 44 (5) insists that these reports, which are comprehensive, shall be submitted to the General Assembly through economic and social council every two years. Article 45(b) of Part II provides for transmission of the reports to the specialized agencies of the United Nations Children Fund in order to transfer the effective implementation of the convention. The committee can also make suggestions and recommendations based on information received as per Article 45 (d).

Further, Part III of the convention in its Article 46) states that the present convention is open for signature by all states; also it is subject to ratification as stated in Article 47. The convention also provides for proposals for amendment and to file it with the Secretary-General of the United Nations through its Article 50(1). Further Article 50(2) states that the amendment adopted shall enter into to force when a two-thirds majority as approves it; from then onwards the amendment will be binding on those parties who have accepted it-states Article 50 (3).

UNCRC aims Relief of child from drudgery to development

Summary

UN Convention on the rights of Child (UNCRC), 1989 aims at such rights of the child which will be “the foundation of freedom, justice and peace” ‘treating all the human beings as members of the human family”. In this module the provisions for the rights of child for survival& health, for development, protection and participation are dealt in length. Further UNCRC insists the state parties to be accountable to convention of child and to see all the children grow up as healthy individuals. In this process it also lays down parental responsibility and state’s assistance to provide a healthy environment. A child needs good support mechanisms too in this context. Child rights study is not an exclusive study but is related to other issues as poverty of people and nations and literacy and health in broader categories.

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Reference

Text of UNI International Convention on the Rights of Child(UNCRC), 1989 www.unicef.orUnited Nations General Assembly (11th October 2002), Resolution adopted by the General Assembly [on the report of the As Hoc Committee of the Whole (A\S- 27\19\Rev.1 and Corr. 1 and 21] S- 27\2. A World fit for children, Availed from: http://www.unicef.org/specialsession/docs_new/documents/A-RES-S27-2E.pdf [Accessed on 31st August, 2002.
NALSAR University of Law (2001), Convention on the Rights of the child-Andhra Pradesh State Report, 2001
Ramaswamy Gita, Child and the law, Andhra Pradesh Judicial Academy, 1996