Children's Rights

Question 1

One of the main issues when it comes to children’s rights: Who is a “child”?

Answer 1

The beginning and the end of childhood are problematic. Does childhood begin at birth or during pregnancy. When does an individual cease to be a minor? General understanding is 18, but the same standard is not applied everywhere.

Question 2

Convention on the Rights of the Child: General Principles

Answer 2

1. Non-discrimination: All children should be given those protections without any discrimination between children.
2. The best interest of the child must be a “primary consideration”
3. The right to life goes beyond mere survival - also has to do with the development of the right-holder (physical, mental, moral, spiritual…)
4. The child’s participation in the decision-making process. The child’s input is something that the authority adjudicating a case should also seek for.
5. The evolving (developing) capacity of the child to exercise their rights.

Question 3

The CRC’s four Ps

Answer 3

1. Protection from discrimination, abuse and neglect.
   –> Children under the criminal justice system and armed conflicts (recruitment of children as child solders).
2. Prevention of harm and abuse
   –> The ban on all forms of physical and mental punishment (CRC committee on Art. 19).
3. Provision of assistance for the full development of the Child. –> E.g. Education: Obligation of state is to put up a school system.
4. Participation in decisions affecting the child’s political, social, economic, cultural and religious life.
   –> Art. 14: Freedom of thought, conscience and religion.

Question 4

The right to education: The right to choose an education

Answer 4

Parental rights over the child’s education. Becomes intense when the child approaches adulthood (When dealing with infants or young children the main tension is between parental rights vs states rights).

Question 5

The right to education: The right to receive an education (the four A’s)

Answer 5

1. Availability (numbers of schools has to be sufficient, the number can be made up of either public or private institutions).
2. Accessibility (has to be both physically and economically accessible)
3. Acceptability (contents, methods and environment)
4. Adaptability (to cultural changes and the child’s development). Changes in culture might imply changes in culture being taught.
   *The legitimate aims of education (educating vs. indoctrinating).

Question 6

The right to education: Specific components

Answer 6

1. Non-discriminatory access to education: there are differences in treatment which an be justified e.g. special needs children.
2. Free and compulsory education: primary education has become mandatory and free, states have an obligation to ensure this.
3. Free choice of education: Who’s choice? Parent’s? Child’s? right to be educated in the language of one’s choice? But the parents cannot demand any funding from the state for education in a language that is not one of the official languages.

Question 7

The right to education: State obligations

Answer 7

1. Respect: Obligation to respect the child’s right to education (both positive and negative obligation - refrain from using education system to indoctrinate children, but also the obligation to respect and fulfill obligation to set up school system with certain conditions and funding).
2. Protect
3. Fulfill (facilitate and provide)

Question 8

D.H. and Others v. the Czech Republic (ECtHR 2000/2007): The facts

Answer 8

The 18 applicants (children) were placed in “special schools” (for the learning impaired) following the procedure established by law.

Question 9

D.H. and Others v. the Czech Republic (ECtHR 2000/2007): The complaint

Answer 9

They were placed in “special schools” due to their race (unclear how). Indirect discrimination: 2% of non-Romani children, 50% of Romani children. Had a detrimental effect on children because of lack of opportunities and different education.

Question 10

D.H. and Others v. the Czech Republic (ECtHR 2000/2007): The defence

Answer 10

The school system discriminates with a legitimate aim (help the learning impaired). The burden of proof of discrimination is on the applicants. Every transfer to a special school was consented to by the child’s parents.

Question 11

D.H. and Others v. the Czech Republic (ECtHR 2000/2007): The reasoning of the Court

Answer 11

Statistics of disparate results among racial groups are sufficient to presume indirect discrimination –> The burden of proof shifts to the Government. The Government failed to demonstrate that the disparate results were due to objective factors (e.g. unbiased psychological tests) unrelated to ethnic original. Parental consent cannot waive children’s right not to be racially discriminated against (besides, it was not informed consent to begin with). There was a violation of Art. 14 (equality and non-discrimination) of the ECHR in conjunction of Art. 2 of Protocol 1 (education).