Authors:Dr Laura Janes
Last updated:2023-09-18
Thirty years of children’s rights – a work in progress
Marc Bloomfield
The United Nations Convention on the Rights of the Child (UNCRC) protects the rights of all children and is 30 years old this November. All governments – with the exception of the USA – have signed up to it. It is the most compete statement of children’s rights ever produced, containing 54 articles protecting all aspects of children’s civil, political, economic, social and cultural rights.
The UNCRC was ratified by the UK government in 1991. It was incorporated into Welsh law through the Rights of Children and Young Persons (Wales) Measure 2011. Although the rest of the UK has not incorporated the UNCRC into law, the courts have repeatedly said that it can ‘properly be consulted insofar as they proclaim, reaffirm or elucidate the content of those human rights that are generally recognised throughout the European family of nations, in particular the nature and scope of those fundamental rights that are guaranteed by the European Convention [on Human Rights]’ (R (Howard League) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin) at para 51; [2003] 1 FLR 484; April 2003 Legal Action 36).
A number of cases stand out where the UNCRC has been used to further the rights of children. For example, in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 WLR 148; June 2011 Legal Action 19, the best interests of children as protected by UNCRC article 3 prevailed in a ruling against the removal of a parent. In another case, article 12, which protects the right of children to be heard, was used successfully to argue for the right of children to be granted an oral hearing before the Parole Board (R (K) v Parole Board [2006] EWHC 2413 (Admin); February 2007 Legal Action 20).
In a case challenging the ban on corporal punishment in schools, Baroness Hale pointed out that although the case was about children's rights there had ‘been no-one ... to speak on behalf of the children’ and the case had been ‘fought on ground selected by the adults’ (R (Williamson and others) v Secretary of State for Education and Employment and others [2005] UKHL 15 at para 71; [2005] 2 AC 246; November 2005 Legal Action 33). Agreeing with the other judges, ‘[f]or the sake of the children’ (para 71) she developed cogent reasons as to why the practice of corporal punishment in a school setting was not permitted in accordance with article 28(2) of the UNCRC, which requires school discipline to be in line with the child’s dignity.
The UNCRC is also used regularly by children’s rights lawyers to advocate for children in cases that never become decided judgments. Even where it is not used explicitly, the growing awareness among lawyers for the need for a special approach whenever children are affected, whether in work to alleviate child poverty, establish rights to care, housing and education or defending those in conflict with the law, is in keeping with the spirit of the convention.
LAG is proud of the wide range of books and articles that support practitioners to promote and protect children’s rights. In recent years, we have published Children in need: local authority support for children and families, Children’s social care law, Disabled children: a legal handbook (a new edition of which will be out soon), SEN and disability discrimination in schools: a legal handbook and Youth justice law and practice.
This year, Legal Action has included features on a more holistic approach to meeting children’s and young people’s needs in the Special Educational Needs and Disability Tribunal (September 2019 Legal Action 14), local authority duties to children without a home (July/August 2019 Legal Action 12), the Supreme Court ruling on criminal record disclosure of offences committed by children (April 2019 Legal Action 9) and law and practice round-ups covering family law (December 2018/January 2019 Legal Action 28 and June 2019 Legal Action 31), youth justice (June 2019 Legal Action 38) and education (May 2019 Legal Action 35). This issue contains a superb youth justice update that covers a wide range of material, from the criminalisation of children in residential care to the recent High Court challenge on the Home Office’s use of child spies, and a comprehensive education update illustrating the difficulties that practitioners face in fighting for the rights of young people in this area.
There is no sign that the need for practitioners to use their skills to protect and advocate for children will abate any time soon. A recent UN report from the special rapporteur on extreme poverty and human rights found that ‘[a]lthough the United Kingdom is the world’s fifth largest economy … [c]lose to 40 per cent of children are predicted to be living in poverty by 2021’.1Visit to the United Kingdom of Great Britain and Northern Ireland: report of the special rapporteur on extreme poverty and human rights, A/HRC/41/39/Add.1, 23 April 2019, page 1.
We all have much to do to bring the rights in the UNCRC alive and hope LAG will be able to continue supporting lawyers in the important role that they play in achieving that.