children and non-discrimination

Transcription

Children and
non-disCrimination
Interdisciplinary textbook
CREAN
1
Children and non-discrimination
3
CHILDREN AND
NON-DISCRIMINATION
Interdisciplinary textbook
Edited by
Dagmar Kutsar and
Hanne Warming
Children’s Rights Erasmus Academic Network
(CREAN)
With the support of the Lifelong Learning Programme of the European
Commission.
Neither the European Commission Office nor any person acting on its behalf
is responsible for the use which might be made of the information contained
in the present publication. The European Commission is not responsible for
the external websites referred to in the present publication.
No permission to reproduce or utilize the contents of this textbook by any means
is necessary, other than correct references to the authors of the chapters. This book
may be cited as: Children and Non-Discrimination. An Interdisciplinary Textbook.
CREAN.
ISBN 978-9949-9538-8-2
University Press of Estonia, 2014
Preface 5
PREFACE
Rita Nunes, Dagmar Kutsar, Hanne Warming
Rita Nunes, MA, is a Researcher at the Intercultural Education
Institute and at the Constitutional and Administrative Law Department at Freie Universität Berlin. Coordinator of the Children’s Rights
Erasmus Academic Network (CREAN) and the European Network of
Masters in Children’s Rights (ENMCR).
[email protected]
Dagmar Kutsar, PhD, editor of the present textbook, is an Associate
Professor of Social Policy at the University of Tartu in Estonia. She
is coordinator of the teaching module of children’s rights and wellbeing of the Social Work and Social Policy Master’s programme at
the University of Tartu. [email protected]
Hanne Warming, PhD, co-editor of the present textbook, is Professor of Sociology, Childhood and Social Work, and Head of the
research group ‘Changing Societies: Citizenship, Participation and
Power’, at the Department of Society and Globalisation, Roskilde
University, Denmark. She is engaged in children rights issues as
board member of the Danish NGO ‘Children’s Welfare’.
[email protected]
The present interdisciplinary textbook forms an integrated part of the project
“Children’s Rights Erasmus Academic Network” (CREAN), which is funded
by the European Commission. The network is composed in its vast majority
by universities offering higher education in children’s rights with the major
aim to include further enhancement of the academic field of children’s rights
as an interdisciplinary field of knowledge. With this manual, CREAN aims to
fill the existing gap on literature related to Art 2 of the UN CRC – the child’s
right to non-discrimination and equality – that is an overarching principle of
the Convention. Further aims of the textbook are to promote understanding
of Art 2 of the UN CRC and how it affects children’s rights, to shed light on
age discrimination against children in various life domains of the child, and
to discuss the ways to non-discrimination and the value of equality.
6
ć Nunes, Dagmar Kutsar and Hanne Warming
Rita
This publication seeks to bring the reader to action, to question the normative stereotypes of discrimination towards children, and to overcome a
sole “becoming” perspective of children not being capable or able. The manual discusses research conducted by an interdisciplinary range of scholars
and practitioners and seeks to lead to reflection and debate. It aims to refresh
and improve the capability of future practitioners to identify and question
discriminative policies and practices and to conduct research into children’s
rights to non-discrimination.
The book is organized in two parts. In the first part “Legal approach to
non-discrimination of a child”, it overviews the most important international legal instruments focusing the analysis on a regional level (Council of
Europe) and finally examining the specific case of domestic laws (Croatia).
In more detail, this part starts with a theoretical introduction to the rights
of the child and non-discrimination. The first chapter by Professor Paroula
Naskou-Perraki introduces the international protection of human rights on
a worldwide scale. This topic is extended to the second chapter by Professor
Agnes Lux through the analysis of the complaints mechanisms (court cases
related to children who have been discriminated on the grounds of property,
racial background, minority or place of birth, among others) and equality
bodies on the European level. It also highlights the particular case promoted
in some European countries of the children’s rights ombudsmen. The analysis
of the complaint mechanisms brings the reader further to the right of a child
to be heard and to the issue of Child Friendly Justice. The chapter by Professor
Dubravka Hrabar demonstrates how Child Friendly Justice can make a step
towards the full application of non-discriminatory procedures for children. In
chapter four, Dr. Irena Majstorović approaches the participation of children
in relation to family mediation. It examines how the principle of non-discrimination functions not only in vertical relationships between the state and
the family, but also horizontally within the family unit, especially when there
is a conflict of interest between the family members. A list of legal documents
related to children’s rights and non-discrimination with links to the sources
and the list of abbreviations that were used in this section complete the first
part of the textbook.
In the second part “Combating child discrimination” the authors focus
is on specific forms of discrimination, such as discrimination by race, language, ethnic origin and disability. Further on, new risks of discrimination
in recent technologies are explored. Finally, the idea of children as subjects
owning capacities and competences to protect their rights are highlighted
and guidelines for monitoring children’s rights in education are introduced.
In more detail, the second part starts with a chapter written by Professor
Manfred Liebel, who confronts the reader with examples of discrimination
Preface 7
based on age, such as the restriction on children as underage people to access
to rights and services. Discrimination on the grounds of ethnic and racial discrimination with a special focus on minority, immigrant and refugee children
is approached by Dr. Urszula Markowska-Manista and Dr. Ewa Dąbrowa in
the sixth chapter. Migrant children are also the topic of the ensuing chapter
elaborated by Ivan Traina and Professor Roberta Caldin, who look at multiple
discrimination of children by ethnic background and disability. The authors
propose a mapping tool of assessing barriers, sectors of life and resources as
obstacles to the realization of children’s rights, or vice versa – leading to discrimination. In the eighth chapter by Smiljana Simeunovic Frick and Cezar
Gavriliuc, non-discrimination of children who do not conform to the typical
family standards – for example children living on residential care or children
living in so-called transnational families – are closely examined. The next
chapter by Kairi Talves and Rita Nunes provides an insight into cyber-bullying and the related new risks of violation of the right to non-discrimination
of a child. The two last chapters of the second part of this textbook are dedicated to the evolving competences of children to combat non-discrimination,
authored by Dr. Carlos Villagrasa Alcaide and Dr. Isaac Ravetllat Ballesté,
and to the monitoring of the application of the UNCRC regarding education,
authored by Professor Nevena Vuckovic Sahovic.
All chapters in this book are supplied with questions or exercises for reflection that give an opportunity to look back to the material and allow for
discussions from the students’ own country perspectives. Each chapter ends
with a short list of suggested further readings. This interdisciplinary textbook
can be used as teaching material in advanced higher education and as an information source for researchers. It can also offer informational support to
policy actors and other civil society agents.
8
ć
ACKNOWLEDGMENTS
This interdisciplinary textbook is the culmination of research conducted by
the partners involved in CREAN. It has been funded by the Lifelong Learning
Programme of the European Commission. We would like to thank all authors
who contributed to this manual, for their wisdom, commitment and passion
about children’s rights. Furthermore we are grateful to the reviewers whose
comments were helpful and supporting. We would like to thank the University Press of Estonia for offering to publish the textbook. We would also like
to acknowledge the contribution of the editorial assistants Knut Heidelk and
Madita Siddique for their valuable help with language editing of the manuscript.
Rita Nunes,
the Coordinator of CREAN
Dagmar Kutsar and Hanne Warming,
the Editors
CONTENTS 9
CONTENTS
List of abbreviations ........................................................................................ 11
Introduction. Manfred Liebel, Katre Luhamaa, Kiira Gornischeff .............. 13
PART I: LEGAL APPROACH TO NON-DISCRIMINATION OF
A CHILD
CHAPTER 1: An introduction to the international protection
of human rights. Paraskevi (Paroula) Naskou-Perraki ................................
CHAPTER 2: Non-discrimination, complaints mechanisms and
equality bodies. Agnes Lux ..............................................................................
CHAPTER 3: Guidelines of the Committee of Ministers of the Council
of Europe on child friendly justice (2010) – family law aspect.
Dubravka Hrabar ..............................................................................................
CHAPTER 4: Children’s Participation in Family Mediation:
an Example of New Challenges for Non-Discrimination.
Irena Majstorović .............................................................................................
LIST OF RELEVANT LEGAL DOCUMENTS ............................................
33
60
77
91
111
PART II: COMBATING CHILD DISCRIMINATION
CHAPTER 5: Adultism and age-based discrimination against children.
Manfred Liebel ..................................................................................................
CHAPTER 6: Discrimination against ethnic and national minority
children in education: selected problems of education in EU countries
with a focus on Poland. Urszula Markowska-Manista, Ewa Dąbrowa .....
CHAPTER 7: Multiple-discrimination of disabled children with
a migrant background. Ivan Traina, Roberta Caldin ..................................
CHAPTER 8: Non-discrimination and children from non-typical
families in Moldova. Smiljana Simeunovic Frick, Cezar Gavriliuc ............
CHAPTER 9: How children are discriminated in the use of their rights.
Carlos Villagrasa Alcaide, Isaac Ravetllat Ballesté ........................................
CHAPTER 10: Cyberbullying – threat to children’s rights and
well-being. Kairi Talves, Rita Nunes ..............................................................
119
144
173
189
208
221
10
Nevena Vuckovic Sahovic
Contents
235
CHAPTER 11: Monitoring non-discrimination in education.
Nevena Vuckovic Sahovic ................................................................................. 235
CONCLUSION: Challenges and pathways for future work in the field.
Hanne Warming ................................................................................................ 253
List of abbreviations
11
LIST OF ABBREVIATIONS
AJIL
CAT
CED
CEDAW
CERD
CIEEL
CoE
CRC
CRPD
ECHR
ECOSOC
ECRI
ETS
EU
FAO
FRA
G.A.
HRC
ICCPR
ICESCR
ICJ
ILM
ILO
IMF
NGO
NHRIs
OAS
OHCHR
OJ
OSCE
Res.
S.C.
UDHR
American Journal of International Law
Convention against Torture and Other Cruel Inhuman
Degrading Treatment
Convention for the protection of all persons from Enforced
Disappearance
Convention on the Elimination of Discrimination against
Women
Convention on the Elimination of Racial Discrimination
Centre of International and European Economic Law
Council of Europe
Convention for the Rights of the Child
Convention on the Rights of Persons with Disabilities
European Convention of Human Rights and Fundamental
Freedoms
Economic and Social Council
European Committee on Racism and Intolerance
European Treaty Series
European Union
Food and Agriculture Organization
Fundamental Rights Agency
General Assembly
Human Rights Council
International Covenant on Civil and Political Rights
International Covenant on Economic, Social, Cultural Rights
International Court of Justice
International Legal Materials
International Labour Organization
International Monetary Fund
Non-Governmental Organization
National Human Rights Institutions
Organization of American States
Office of the High Commissioner for Human Rights
Official Journal
Organization for Security and Cooperation in Europe
Resolution
Security Council
Universal Declaration of Human Rights
12
Hanne
List of abbreviations
Warming
UN
UNCTAD
UNESCO
UNHCHR
UNHCR
UNICEF
UNTS
UPU
WGC
WGS
WHO
WTO
253
United Nations
United Nations Conference on Trade and Development
United Nations Educational, Scientific and Cultural
Organization
United Nations High Commissioner for Human Rights
United Nations High Commissioner for Refugees
United Nations Children’s Fund
United Nations Treaty Series
Universal Postal Union
Working Group on Communications
Working Group on Situations
World Health Organization
World Trade Organization
Introduction
13
INTRODUCTION
The Right to Non-Discrimination:
Human Rights Basis and Concepts
Manfred Liebel, Katre Luhamaa, Kiira Gornischeff
Prof. Dr. Manfred Liebel, Director of the Institute for International
Studies on Childhood and Youth at the International Academy
for innovative Pedagogy, Psychology and Economy (INA gGmbH)
and of the M.A. in Childhood Studies and Children’s Rights at the
Free University Berlin. [email protected]
Katre Luhamaa, MA, is a researcher of international and human
rights law in the Institute of International and European Law,
Faculty of Law of the University of Tartu. Her main research
interests are connected to comparative application of international human rights and rights of the child in particular.
[email protected]
Kiira Gornischeff, a project leader at Estonian Union for Child
Welfare and MA student in the Faculty of Law of the University
of Tartu. In her work she is promoting child participation, along
with counselling families and research in child-friendly justice
system. [email protected]
The right to non-discrimination is one of the most complex and important
topics of the international protection of human rights. Therefore, an introduction to the international human-rights documents on the right to nondiscrimination is necessary to contextualize this topic, with a special attention towards the principle of equality. With regard to legal foundations, we
will especially address the question of direct and indirect discrimination and
will give references on juristic rules and authorities that can be used to work
against discrimination. In view of social theory, we will secondly expose in
14
which characteristics and interconnections discrimination arises in social
life, and which concepts and categories could be helpful to understand and
approach them. By doing so we will pay special attention on the concept of
“multiple discrimination”.1
Part I: Human Rights Principles
1. The principle of equality in international law
Need for equality is in the heart of every democratic legal system – equality of persons before the law, equality of opportunity, equality of access to
education, equality between genders etc. (see e.g. Smith, 2012). It is also part
of every international human rights instrument as well as a number of national constitutional systems. This would suggest that it is possible to have a
universal intuitive understanding of what equality means and how it could
be achieved. Equality implies that all human beings should enjoy the rights
provided for in the international instruments on an equal basis and in their
totality. This requires that states that have accepted respective treaty obligations take all necessary steps to enable every person to enjoy those rights.2
A closer look on equality reveals that its meaning is relative and shifts
depending on the circumstances or groups we look at. Every decision taken
might have a direct or indirect impact on the lives of others.3 Right to equality
is protected through the prohibition of non-discrimination, thus, as discussed
below, the aim of non-discrimination law is to allow all individuals an equal
and fair prospect to access opportunities available in a society.
Discrimination may affect the way people are treated in all spheres of society be it politics, education, employment, social or medical services, housing, the penitential system, law enforcement.4 Historically seen, the sources of
discrimination concerned race, sex or sexual orientation, ethnic and religious
background, disabilities, age, social status etc. (see further discussion e.g. in
Freedman, 2002: 27–65).
1
The first part of this paper is written by Katre Luhamaa and Kiira Gornischeff, the second
part of this paper is written by Manfred Liebel.
2
Human Rights Committee, ‘General Comment No. 28: Article 3 (The Equality Of Rights
Between Men And Women)’ (HRI/GEN/1/Rev9 (Vol I) pp. 228–234) paras 2–3.
3
Handbook On European Non-Discrimination Law, European Union Agency for Fundamental Rights, European Court of Human Rights – Council of Europe, Luxembourg 2011,
p. 21.
4
Human Rights in the Administration of Justice: A Manual on Human Rights for Judges,
Prosecutors and Lawyers, chapter 13. The Rights to Equality and Non-Discrimination in the
Administration of Justice, United Nations. New York and Geneva, 2003, p. 636.
Introduction
15
The grounding principle of the Universal Declaration of Human Rights5 is
that all people are born “free and equal in dignity and rights” (Art 1), meaning
that universal rights should be applied to all without any distinction, equally
between men and women. Therefore, traditional understanding of non-discrimination requires that similar groups are treated similarly and different
groups are treated differently.6 This prompts a question: which groups are
similar and which groups are different as right to equal treatment has several
elements. Firstly, it requires equality before the law (known also as “formal
equality”) and secondly it requires equal protection of the law (substantive
equality).
The adoption of the UDHR was an important first step in confirming the
importance of the principle of the equality before the law. Article 2 of the
UDHR enlists the prohibited grounds of discrimination: “Everyone is entitled
to all the rights and freedoms set forth in this Declaration without distinction of
any kind, such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of political, jurisdictional or international status of the country or territory to which a person
belongs, whether it be independent, trust, non-self-governing or under any other
limitation of sovereignty.”7
The full meaning of this requirement is further clarified in article 3 of
the International Covenant on Civil and Political Rights8 and the articles 2
(2) and 3 of the International Covenant on Economic, Social and Cultural
Rights.9 The Committee on Economic, Social and Cultural Rights has clarified
that the states are require to take “all necessary steps to enable every person
to enjoy those rights. These steps include the removal of obstacles to the equal
enjoyment of such rights, the education of the population and of State officials
in human rights, and the adjustment of domestic legislation as to give effect to
the rights protected in the Covenant. These measures must not be measures of
protection, but also positive measures in all areas so as to achieve the effective
5
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217
A (III), hereinafter UDHR.
6
See further e.g. Handbook on European non-discrimination law, 2011, European Union
Agency for Fundamental Rights, 2010, pp. 21–22.
7
Human Rights in the Administration of Justice (fn 4), p. 636.
8
General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23
March 1976. Hereinafter ICCPR.
9
General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976. Hereinafter ICESCR.
16
and equal empowerment” of all.10 Thus, guaranteeing equality de jure11 will
not necessarily result in de facto12 equality (Smith, 2012, fn 1).
Therefore, in order to protect and prevent individual and common rights,
the non-discrimination law has generally two elements. Firstly, the law constitutes that individuals who are in similar situations should receive similar
treatment and not be treated less favourably simply because of a particular
“protection” characteristic that they possess (that is known as prohibition of
direct discrimination). And secondly, non-discrimination law stipulates that
individuals who are in different situations should receive different treatment
to the extent that this is needed to allow them to enjoy particular opportunities on the same basis as others (also known as prohibition of indirect discrimination). Both types will be explained in detail below.13
The above mentioned types of non-discrimination are protected by different and more detailed remedies by all the major international human rights
instruments including International Covenant on Civil and Political Rights;
International Covenant on Economic, Social and Cultural Rights; International Convention on the Elimination of All Forms of Racial Discrimination14; Convention on the Elimination of All Forms of Discrimination against
Women15; Convention on the Rights of the Child16 and Convention on the
Rights of Persons with Disability17; the European Convention on Human
Rights18; the European Social Charter (revised)19 etc. These instruments and
institutions guaranteeing their protection are further discussed in the chapter
by Paraskevi Naskou-Perraki on “An Introduction to International Protection
of Human Rights”.
10
General comment No. 28 (fn 2) para 3. The substance of this obligation is further analysed
e.g. In Human Rights in the Administration of Justice (fn 4), p. 639.
11
De jure – by right.
12
De facto – in deed.
13
Handbook on European non-discrimination law (fn 3) p. 21.
14
Adopted and opened for signature and ratification by General Assembly resolution 2106
(XX) of 21 December 1965, entry into force 4 January 1969.
15
New York, 18 December 1979, entry into force 3 September 1981, United Nations, Treaty
Series, vol. 1249, p. 13.
16
New York, 20 November 1989, entry into force 2 September 1990, United Nations, Treaty
Series, vol. 1577, p. 3.
17
New York, 13 December 2006, entry into force 3 May 2008, United Nations, Treaty Series,
vol. 2515, p. 3.
18
Amended by Protocols Nos. 11, and 14, supplemented by Protocols Nos. 1, 4, 6, 7, 12 and
13, CETS no. 194.
19
Strasbourg, 3. May 1996, entry into force 1 July 1999, CETS No. 163.
Introduction
17
2. The legal concepts
Anti-discrimination law has grown rapidly in both its scope and complexity,
but have not diminished the de facto discrimination. This means that also
the number of measures required by international human rights instruments
have increased and become more comprehensive.
Direct discrimination
The bedrock of equality is the prohibition of direct or formal discrimination
and this prohibition is present in all of the main human rights protection
systems including the UN, the ECHR and EU law.20 For example, article 7 of
the UDHR established the right to equality as follows: “All are equal before the
law and are entitled without any discrimination to equal protection of the law.”
One of the definitions of direct discrimination can be found in article 2
(2) a of the Racial Equality Directive21 that states that direct discrimination
is “taken to occur where one person is treated less favourably than another is,
has been or would be treated in a comparable situation on grounds of racial or
ethnic origin”.22 It is defined quite similarly in the General Comment no. 20
of the Committee on Economic, Social and Cultural Rights whereby the direct discrimination “occurs when an individual is treated less favourably than
another person in a similar situation for a reason related to prohibited grounds.
Direct discrimination also includes detrimental acts or omissions on the basis
of prohibited grounds where there is no comparable similar situation (e.g. the
case of a woman who is pregnant)”.23 Eliminating formal discrimination requires ensuring that a State’s constitution, laws and policy documents do not
discriminate on prohibited grounds; for example, laws should not deny equal
social security benefits to women on the basis of their marital status. 24
Direct discrimination is clearly based on the concept of equality as consistency. As such, it is a relative concept. It is not the treatment in itself that is
an issue but the fact that one person is treated less favourably than another.
Equality in this case is achieved if both parties have been equally well treated;
20
For case-law example see Coleman case, a mother claimed that she received unfavourable
treatment at work, based on the fact that her son was disabled. ECJ, Coleman v. Attridge Law
and Steve Law, case c-303/06 “2008” i-5603, 17 July 2008. See also Human Rights in the Administration of Justice (fn 4), p. 638.
21
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.
22
Handbook on European non-discrimination law (fn 3) p. 21–22. For case-law example
see Coleman case where a mother claimed that she received unfavourable treatment at work,
based on the fact that her son was disabled. ECJ, Coleman v. Attridge Law and Steve Law, case
c-303/06 “2008” i-5603, 17 July 2008
23
United Nations. Economic and Social Council. General Comment No. 20, para 10, a.
24
Ibid. Para 8, a.
18
but it is also achieved, if they have been equally badly treated and there is
nothing to suggest that first is more desirable than the second (see also the
discussion in Freedman, 2002).
Examples of direct discrimination are the refusal of entry to a restaurant
or shop; receiving a smaller pension or lower pay; being subject to verbal
abuse or violence; not being able to claim inheritance rights; being excluded
from the mainstream education system; not being permitted to wear religious
symbols etc.25
Establishing direct discrimination requires finding a similarly situated
individual of the opposite sex, race, age group etc. because comparison of
these situations is in the core of the legal formula. This brings about a list of
other problems – the choice of a comparable group itself requires complex
value judgements on which differences are relevant and which are irrelevant;
there might even be situations where no appropriate comparable group can
be found (e.g. pregnancy, disability discrimination) (see also the discussion in
Freedman, 2002: 92–105).
Discrimination is often justified by reference to other social priorities such
as economic or social policy factors. International human rights treaties do
not allow any such justification. The horizontal effect of this prohibition, however, is not absolute as there might be competing values that are more important than that of equality. Therefore, the test of proportionality has to be
applied in every circumstance in order to see whether different treatment in a
particular case is justified.26
Indirect discrimination
Equal treatment is not sufficient to address all inequalities in society. Rather,
there might be cases where equal treatment would lead to unequal results –
treating people the same way regardless of their differing backgrounds frequently entrenches difference. This is the move from consistency to substance.
Examining the impact of apparently neutral practices and criteria reveals the
extent to which the dominant culture or religion is favoured (see further the
discussion in Freedman, 2002: 106–116, fn 27). The aims of the concept of
indirect discrimination are ambiguous as it intends to reach beyond equal
treatment towards equality of results as well as equality of opportunities.
International law acknowledges that discrimination may result not only
from treating people in similar situations differently, but also from offering the
25
See e.g. Handbook on European non-discrimination law (fn 3) pp. 22–23.
Handbook on European non-discrimination law (fn 3) gives number of examples on how
the test of proportionality works in different areas of protection. See in particular chapter 4 for
the case law.
26
Introduction
19
same treatment to people who are in fact in different situations.27 According
to the General Comment no. 20, indirect discrimination refers to laws, policies or practices which appear neutral at face value, but have disproportionate
impact on the exercise of rights as distinguished by prohibited grounds of discrimination. For instance, requiring a birth registration certificate for school
enrolment may discriminate against ethnic minorities or non-nationals who
do not possess, or have been denied, such certificates.28 Human Rights Committee has confirmed this understanding and stated that discrimination is any
distinction that “has the purpose of effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and
freedoms”, pointing out that “the enjoyment of rights and freedoms on an equal
footing … does not mean identical treatment in every instance”.29
The move beyond consistent treatment has not eliminated the need for a
comparable group, albeit the individual and his treatment is rather replaced
by a group and its comparable treatment. Therefore, it is necessary to guarantee that the condition or requirement is such that considerably fewer of one
group than the other can comply. The choice of a right comparable group
is particularly important as well as difficult here, as the wrong choice might
even reinforce discrimination.30
Eliminating discrimination in practice requires paying sufficient attention
to groups of individuals, which suffer historical or persistent prejudice instead
of merely comparing the formal treatment of individuals in similar situations.
States must therefore adopt the necessary measures to prevent, diminish and
eliminate the conditions and attitudes, which cause or perpetuate substantive
or de facto discrimination. For example, ensuring that all individuals have
equal access to adequate housing, water and sanitation will help to overcome
discrimination against women and girls and persons living in informal settlements and rural areas.31
As most of these values are relative, the balance between different interests
is specifically important and this could mean that some measures or barriers that might appear discriminatory in fact support the substantive equal27
For case law see e.g. D.H and Others v. the Czech Republic, where a series of tests were
used to establish the intelligence and suitability of pupils in order to determine whether they
should be moved out of mainstream education and into special schools. ECTHR, D.H. and
Others v. the Czech Republic “GC” (No.57325/00), 13 November 2007, para. 79; Handbook
on European non-discrimination law, 2011, p. 29.
28
United Nations. Economic and Social Council. General Comment No. 20, par.10, b.
29
Human Rights Committee, ‘General Comment No. 18 – Non-Discrimination’ (A/45/
40(VOLI)(SUPP) 4 October 1990). See also Hammarberg & Belambaogo, 2000.
30
There is considerable case law of the ECHR on this issue. See e.g. Burden v. the United
Kingdom, no. 13378/05, § 60, ECHR 2008 etc.
31
United Nations. Economic and Social Council. General Comment No. 20, para. 8, b.
20
ity. Therefore, in these types of cases the obligation to justify the measures
taken often relies on the party imposing the measures (i.e. reversed burden of
proof32 is applied).
3. Beyond indirect discrimination – reverse discrimination
The recognition of the limits of both direct and indirect discrimination has
led lawmakers to strike out a new direction – the imposition of positive duties to promote equality rather than just the negative requirement to refrain
from discrimination. These requirements might involve promotion campaigns, positive quotas, specific obligations imposed on the public authorities
or private entities, incentives given to improve the positions of the marginalised groups etc. These anti-discrimination measures move away from the
fault-based model and recognise that societal discrimination extends beyond
individual acts of prejudice (see further the discussion in Freedman, 2002:
121–124, fn 27).33
Different legal systems have stressed the importance of different elements
of equality. EU law for example stresses equal opportunities. The Treaty on
the Functioning of the European Union34 provides an example in article 157
(4): “With a view to ensuring full equality in practice between men and women
in working life, the principle of equal treatment shall not prevent any Member
State from maintaining or adopting measures providing for specific advantages
in order to make it easier for the underrepresented sex to pursue a vocational
activity or to prevent or compensate for disadvantages in professional careers.”
These measures might include the removal of barriers and redressing past
disadvantages or stereotypes; promotion of equal representation and through
that guaranteeing that this would lead to structural change. It has to be, how32
See e.g. Directive 2006/54/EC of the European Parliament and of the Council of 5 July
2006 on the implementation of the principle of equal opportunities and equal treatment of
men and women in matters of employment and occupation (recast).
33
This issue has also been addressed by the UN agencies. See for example, the UN Committee on the Elimination of Racial Discrimination, ‘General Recommendation No. 32: The
Meaning and Scope of Special Measures in the International Convention on the Elimination
of All Forms of Racial Discrimination’ UN Doc. CERD/C/GC/32, 24 September 2009; UN
Committee on Economic Social and Cultural Rights, ‘General Comment 13: The Right to
Education’ UN Doc. E/C.12/1999/10, 8 December 1999; UN Committee on the Elimination of
Discrimination Against Women, ‘General Recommendation No. 25: Article 4(1) of the Convention (temporary special measures)’ UN Doc. A/59/38(SUPP), 18 March 2004; UN Human
Rights Committee, ‘General Comment No. 18: Non-Discrimination’ UN Doc. A/45/40(Vol.I.)
(SUPP), 10 November 1989; UN Committee on the Elimination of Racial Discrimination,
‘General Recommendation No. 30 on Discrimination against Non- Citizens’ UN Doc. HRI/
GEN/1/Rev.7/Add.1, 4 May 2005.
34
OJ C 326, 26.10.2012.
Introduction
21
ever, acknowledged that there are limits to what the law can do. Legal processes are always expensive and long and can bring with it stigmatization, and
there are also limitations on legal remedies available. Therefore, it is necessary
to recognize the importance of social policy measures in addressing the discrimination issues.
Part II: Discrimination in social life
Discrimination in social life situations always appears in several and interconnected variations. To be able to understand events of discrimination, their
origin and impact, great importance should be attached to multidimensional
concepts.35
1. Categories of Discrimination
While having the development of multidimensional concepts in mind, sociologist Leslie McCall (2005) is differentiating between three prospects:
Anti-categorical concepts question categories in general, as the construction of categories itself already generates in- and exclusion. They
understand categories as norms, which also construct the deviation of
norms. Anti-categorical concepts try to abrogate any reference to factors of discrimination;
Intra-categorical concepts question the degree of homogenization and
necessary differentiation within categories. They also try to grasp them
more accurately. Such concepts are mainly interesting for the consequences of discrimination (different ‘reasons’ for different people in
different circumstances);
Inter-categorical concepts use different categories strategically as macro-social categories. This allows them to contrast social disparities, and
permits possible measures and their mismatch. These concepts refer to
greater social contexts which lead to social disadvantage and finally to
discrimination of human beings.
For identifying discrimination are usually used the categories race, ethnical
background, gender, religion or world-view, disability, age or sexual identity.
Though it raises the question for reasons of choice, that is to say if in all contexts the same categories are relevant or if they always have to be empirically
35
The following remarks are referring partly to Baer, Bittner & Göttsche (2010).
22
determined anew each time. The choice not only has to be justified, but in
certain contexts has to be open-end, adding new relevant categories to this
categorization. This is often, e.g. in gender studies, expressed by the “etc.” in
the end of a list of categorization. Anti-discrimination-law has acknowledged
this as the prohibition of discrimination on human-rights level due to comparable reasons within different phrases.
A hierarchy of categories is problematic because of the following reasons:
First, there is the question if and which discriminations should be addressed
or should be left open or tabooed. Second, it is to be asked in which cases it
makes sense or is justified to focus on certain categories, for instance, there
might be contexts in which racism has to be brought up without raising issues like disabilities, sexual identity or age at the same time.36 In any case, it is
important to make the taken priorities transparent and to justify them with
regard to content.
Central questions that have to be raised in any concept are the following:
how the different dimensions of discrimination are connected to each other
and how they influence each other; which importance is given to these dimensions; if it is about individuals or group, about identities (subjective or
attributed) or someone’s traits (‘natural’ or socio-cultural); and finally if it is
about someone’s matters for discriminating others.
2. Intersectionality
Most known and influential for the analysis of discrimination is the concept
of intersectionality. The concept has been submitted since the 1980’s by USAmerican jurist Kimberlé Crenshaw. She argues that useful legal protection
may not only deconstruct discrimination into its pieces, but also recognize it
as complex events.
Crenshaw uses the term ‘intersection’ as the image of a crossroad at which
two reasons for discrimination (particularly ‘race’ and ‘sex’) could come together, which was understood on legal grounds. She criticizes a ‘single-axis
approach’, which separately focuses on different reasons of discrimination.
This approach acknowledges discrimination to be either based on racism or
sexism or based on other reasons, but does not comprehend specific, precisely
intersectional discrimination (Crenshaw, 1989).
Giving an example, Crenshaw criticizes antidiscrimination politics which
refer only to one axis, while negating that ‘black’ women’s experience of discrimination do not suit all (white) women’s situations. Or they construct such
experience to be so different in comparison to ‘white’ women or ‘black’ men
36
Subaltern Studies’ theorist Gayatri Spivak (1987), discussed this as the “strategic essentialisation”.
Introduction
23
that black women’s matter of fact cannot be fulfilled (‘black women cannot
take someone to court due to sexual discrimination, as it seems to be a particular case’). If nothing else it is about structurally taking intersectionality seriously in law, in other words the overlapping of hierarchies and the interaction
of racism and patriarchy generally. Likewise it is about unique social positions
at that particular point of interference, the location of ‘women of color’ both
within overlapping systems of subordination.
In further works, Crenshaw relates her critique to politics: separation in
individual cases of discriminations, for instance in the case of fighting domestic violence, lead to the inability to form a coalition between the black
civil-rights movement and feminist movements or even to compete with each
other. It becomes apparent in the “intersectional disempowerment“, ‘black’
women can be struck by, which means that they are confronted with racism
in feminist context and have to face sexism in anti-racist context at the same
time and therefore have to fight for space which does not require them to defend or separate parts of their political interest. “Intersectional subordination
needs not be intentionally produced; in fact, it is frequently the consequence
of the imposition of one burden that interacts with pre-existing vulnerabilities to create yet another dimension of disempowerment” (Crenshaw, 1991:
1249). This would be in need to be overcome by a better understanding of
intersectional discrimination.
3. Multiple, compound and intersectional discrimination
Finnish jurist Timo Makkonen, member of the European Network of Independent Experts in the Non-Discrimination Field, introduced another concept,
which distinguishes between “multiple discrimination”, “compound discrimination” and “intersectional discrimination” (Makkonen, 2002: 12) as main
terms.
‘Multiple discrimination’ according to Makkonen, describes “a situation
in which one person suffers from discrimination on several grounds, but in
a manner in which discrimination takes place on one ground at a time” (op.
cit.: 10). ‘Multiple’ means an addition or accumulation of discrimination due
to different reasons and at different points in time or respectively in different
places. As an example, Makkonen illustrates a disabled woman who is discriminated as a female trying to get ahead carrier wise and also based on her
physical disability in trying to access a building. Socially, those experiences
join into one person’s prerequisites. Here the main focus is on the different
points in time as much as the view of the stakeholders.
Alongside, ‘compound discrimination’ is drafted as a “situation in which
several grounds of discrimination add to each other at one particular instance:
24
discrimination on the basis of one ground adds to discrimination based on
another ground to create an added burden” (op. cit.: 11). Segregation in the
work field can serve as an example, which acknowledges some jobs as specifically female or male and at the same time associates certain jobs with people
with migration background, others as jobs that are seen as ‘white’ peoples
work or that do not have a migration background.
Makkonen uses the term ‘intersectional discrimination’ in a narrower
sense (than Crenshew) as “such a situation in which there is a specific type
of discrimination, in which several grounds of discrimination interact concurrently” (ibid.). This kind of discrimination accumulates from the specific
interaction of various discrimination reasons. The forced sterilization of disabled women can serve as an example. Neither women without disability nor
disabled men are affected by that. This is similar to the racist – sexist way of
giving notice: Certain people hold a place, which is crossed by two different
discrimination policies.
In general, Makkonen’s overall concept helps to understand discrimination that takes place on different occasions, in different time frames and in
different situations for one person.
4. Axis of inequality and structural discrimination
German social philosophers Cornelia Klinger and Gudrun Axela Knapp
(2007) describe a multidimensional discrimination concept, which picks
out ‘axis of inequality’ as the central theme. It approaches the macro-social
level, discussing intersections of structural inequality (situations) from a sociological point of view. With this approach, the authors are turning against
an exaggerated focus on the individual level of subjects, their identities and
experiences, the “strong focus on micro- up to meso-theoretical aspects of
identities and discrimination” (Klinger & Knapp, 2007: 35–36). Therefore,
what is ‘crossing’ here are structures. It is about structural discrimination and
can be easily connected to institutional discrimination. In accordance with
Linda Supik (2008: 2), this is understood as “the direct or indirect mechanism
of disadvantage, which is embedded in organizational structures of social institutions, and therefore distributes opportunities of participation unequally
without doing so on purpose or without having any ‘bad faith’. They occur
within the education system, on the job market or health system, to cite an
example. This often only becomes visible in statistic group comparisons.”
Similarly, structural discrimination is often picked up as a central theme to
mark socially intensified situations of inequality, which therefore are related
to individual experiences but nevertheless function independently towards
individual intentions. In the opinion of Klinger and Knapp, attention should
Introduction
25
be drawn towards the three axes of inequality: class, gender and ‘race’. The
choice of those three axes is justified as only those three sustainably influence social inequality in “almost all societies” (Klinger & Knapp, 2007: 20).
According to Klinger and Knapp, they shape the basic paten of unequal situations in social relations by their common reference to work. All three are
therefore structuring and segregating the work market within reproductive
and gainful employment.37 ‘Race’, class and gender serve for justifying the
degradation of certain occupations, which were creating unique but structurally still comparable effects of foreignness, by interrelating on an informative
level. Therefore, this approach can be understood as ‘intra-categorical’ in the
sense of McCall (2005). For instance, the coaction of different inequalities can
be analysed empirically regarding the ‘pay gap’ on the employment market or
the discrimination of children with migration background within the education system.
The concept is productive regarding an understanding of multidimensional discrimination. It enables to understand the ‘reasons’ as ‘axes of inequality’,
on which situations of disadvantage occur but which are prohibited as discriminations.
5. Interdependence
In Germany, Katharina Walgenbach et al. have developed another concept,
which indicates an interactive offset of reasons for discrimination describing
the clash of different reasons. It demonstrates exemplarily that the concept
of definable, overcrossing categories is reproducing a conception, in which
categories have a “genuine core” (Walgenbach et al., 2007; Walgenbach, 2014).
The authors see the risk of concepts of intersectionality, which work with
metaphors like “intersection” or “axis”, in conforming a norm. Consequently,
Walgenbach et al. (2007: 9) suggest “to grasp gender as an interdependent
category. In doing so the term interdependence cannot be used to describe
alternating interactions between categories, more so social categories are conceptualized as interdependent themselves. Hence this suggestion means that
categories like class, ethnicity or sexuality have to be suggested to be interdependent themselves.”
This connection deals with an ‘anti-categorical’ concept of intersectionality but also includes parts of ‘intra-categorical’ analysis (in terms of McCall,
2005), which is to say that the construction of categories becomes a topic itself
and is critically analysed to understand multidimensional experiences of inequality by taking into account their formative categorization.
37
Similar to the process of segregation in the education system.
26
6. The problem of distinguishing categories
In some concepts of discrimination, the assumption of categories creates an
unquestioned foundation to research its complexity and conditions. Therefore, the level of categories shall be analysed in detail criticizing hitherto existing approaches.
According to linguist Antje Hornscheidt (2007: 67), the establishment of
categories happens through language: “From a perspective-pragmatic linguistic point of view […] categories are categorizations, supported and created by
practices of nomination, which are intensely converted and therefore seem
to include an antecedent naturalness – in linguistic usage and thinking the
process-related categorization develops into a temporary fixed category and
antecedent linguistic denotation.”
According to this, the practices of naming are leading towards the categorization of human beings and consequently to both in- and exclusion. From
this arises the crucial distinction between those who are included and those
who are not, for instance between those legally protected against discrimination and those addressed by anti-discrimination-counselling, or between ‘the
ones who are not affected’ and ‘the others’. Denotation separates imaginary
groups and creates further horizons of denotations. Additionally, denotations
are ‘ontologizing’ processes, because everything that is labelled ‘is like that’ in
that precise moment. In the field of legal work against discrimination, a ‘difference dilemma’38 is arising from that. On the one hand, to try to label something as injustice and on the other hand, to cover that it is not established,
underlies change and therefore is not essential.
In the context of discrimination, the problem itself arises from an often
‘ontologizing’ categorization of language which is originally meant to solve it.
It has been criticized that if the law against discrimination refers to the term
‘race’, it becomes racist itself. At the same time, discussions have evolved in
the field of ‘disabilities’. But also the term ‘age’ is fixing something that is actually not possible to fix, as the chronological age of life takes effects differently.
The term ‘gender’ is suggesting two types of gender which are clearly definable, even though in jurisdiction nowadays gender is understood as a multidimensional and highly heterogeneous spectrum of different traits which
allows to understand inter- and transsexuality as well as transgender ways of
life in a better way.
Reflecting linguistic methods of denotation makes us question the way we
talk about people and people’s experiences as much as it demands from us to
find appropriate ways to address discrimination without reproducing it linguistically.
38
In accordance to concepts of childhood and children’s rights the ‘difference dilemma’ is
discussed by Karl Hanson (2012: 71–72).
Introduction
27
7. Summary and outlook on handling different concepts
The development of multidimensional discrimination concepts is based on
the insight that the reduction to one trait, reason or dimension of discrimination distorts social reality and the experience of people who are being discriminated against. Whilst emphasizing multidimensionality, it precisely is
not about difference or simple variety, but about inequality and hierarchy
leading to discriminating results. Social distribution of opportunities is specifically unequal in terms of certain structures that can be pictured as ‘axes’.
Money, free or flexible time, access to influential positions, fulfilment of personal desires, protection of any type of violence, acknowledgement and resources are not distributed randomly, but structured by racism, by age-based
disadvantages, by disabilities, by the social exclusion of people as disabled,
by sexism and hetero-sexism. This does not primarily relate to ‘phobia’ or
‘hostility’, even though this has partly evolved in political context. It holds the
danger of individualization and psychologization.
Consequently, it has to be remembered that discrimination has its foundation in certain cultural and symbolic orders, ideological hardenings
and structures, which manifest in injured and disadvantaged experiences.
Hetero-sexism in contrast to ‘homophobia’ or ‘trans-phobia’ illustrates that
it deals with discrimination due to the norm of the hetero-sexist view of two
genders – and it is about two different, natural, complementary and seeking
genders. Therefore, orientation towards a binary biological order of gender as
much as manners of living against homosexuals and bisexuals as much as in
individual identities against inter- and transsexual people.39 Different people
are affected in different ways, because people take up social positions in different ways: all have a gender, sexual identity, age, etc. Some categories are
important in relation to a person’s identity.
Although disadvantages can come along with certain privileges in some
context, they can change their meaning throughout time. In European countries for instance, ‘white’ people are regularly in a privileged situation concerning racist categorizations, which leads to the ‘norm’ of ‘being white’ and
therefore a person is never forced to deal with it or question the fact of ‘being
white’ or question in what way they could work against structural and institutional discrimination at work or school, etc. Giving another example, at the
same time women and men are regularly categorized as heterosexual. This
is why lesbian, gay or bisexual women and men do not point out their sexual identity in contexts where discrimination could potentially occur. Even
though they might be categorized as lesbian or gay due to a gender-norm
39
One example is the occurring classification by surgical interventions of children without
distinct sexual characteristics towards one gender, having significant consequences on their
future identity.
28
that influences our interpretation of outer-appearance and behaviour, nobody
ever talks about it directly. Others might as well talk about it normally and for
instance speak about their relationship and children. Structures create hierarchizing effects, even though individuals experience those differently.
In terms of these ideas, it seems to make a sense to speak of ‘dimensions’
rather than of ‘reasons’ or ‘traits’. Even though this term seems to be rather
abstract, used as a head-term it allows a contextualized differentiation. For
similar reasons the term ‘categorization’ should be preferred to the term ‘categories’, especially when it comes to settings that relate to science and expertise, as well as political law or other political connections. In contrast to
‘reason’ ‘trait’ or ‘category’, this term emphasizes the active process of creating
a disadvantaged reality through language. For instance, if the ethnical background, gender (or ‘genderization’), religion, worldview (or ‘culturization’),
disability, age or sexual identity (sexual norm) are summed up as ‘categorizations’ it becomes obvious that it is not about something that people have or
that they ‘are’ to a certain extent but that it is about divisions which are shaped
by people in certain powerful positions. ‘Categorizations’ can also reflect people’s self-perception and identities as a man, a heterosexual mother, a young
lesbian, a rich Muslim, etc. But what makes the big difference is that they can
do all of this without having to. Exclusion or discrimination includes a division into norm-conforming and non-norm-conforming which is serving as
the foundation of discrimination understanding.
‘Categorization’ associatively leads to a differentiated and complex understanding of discrimination. This creates additional value in law and court, in
politics and awareness raising as much as in education against discrimination.
In other contexts, other terms may be useful; nevertheless, reasons against the
usual terms shall be actively addressed. Multidimensionality in this context is
nothing abstract either: it is important and not incomprehensible despite being complex. It also helps scientific research to deal with more complexness of
life-realities and various levels of inequality.
As a consequence, it will be important to point out and explain multidimensional discrimination in public communication and to clearly indicate
different cases and constellations, the dangers of ‘stereotypization’, ‘prioritization’ and ‘hierarchization’ as well as ‘essentialization’. The term multidimensional discrimination keeps open how different categories affect each other.
This shall be used as an advantage.
Introduction
29
References
Baer, S., Bittner, M. & Göttsche, A.L. (2010) Mehrdimensionale Diskriminierung –
Begriffe, Theorien und juristische Analyse. Berlin: Antidiskriminierungsstelle des
Bundes.
Crenshaw, K. (1989) ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist
Politics’, The University of Chicago Legal Forum, 139–167; http://philpapers.org/
archive/CREDTI.pdf (accessed: 29.10.2014).
Crenshaw, K. (1991) ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color’, Stanford Law Review, 43(6), 1241–1299.
Freedman, S. (2002) Discrimination Law. Oxford: Oxford University Press.
Freedman, S. (2003) ‘Discrimination’, in Oxford Handbook of Legal Studies, eds. Cane,
Peter & Tushnet. Oxford: Oxford University Press.
Freedman, S. (2005) ‘Double trouble: multiple discrimination and EU law’, European
Anti-Discrimination Law Review, 2, 13–18.
Hammarberg, Th. & Belambaogo, A. (2000) Proactive Measures against Discrimination. Children’s Rights: Turning Principles into Practice. Stockholm: Save the Children
Sweden.
Hanson, K. (2012) ‘Schools of Thought in Children’s Rights’, in Liebel, M., et al. Children’s Rights from Below: Cross-Cultural Perspectives. Basingstoke: Palgrave Macmillan, 63–79.
Hornscheidt, A. (2007) ‘Sprachliche Kategorisierung als Grundlage und Problem des
Redens über Interdependenzen. Aspekte sprachlicher Normalisierung und Privilegierung’, in Walgenbach, K., et al. (eds.) Gender als interdependente Kategorie. Neue
Perspektiven auf Intersektionalität, Diversität und Heterogenität. Opladen/Farmington
Hills: Barbara Budrich, 65–106.
Klinger, C. & Knapp, G.-A. (2007) ‘Achsen der Ungleichheit – Achsen der Differenz: Verhältnisbestimmungen von Klasse, Geschlecht, “Rasse“/Ethnizität’, in Klinger, C., et al.
(eds.): Achsen der Ungleichheit. Zum Verhältnis von Klasse, Geschlecht und Ethnizität.
Frankfurt/M.: Campus, 19–41.
Makkonen, T. (2002) Multiple, Compound and Intersectional Discrimination: Bringing the
Experiences of the Most Marginalized to the Fore. Abo Akademi University.
McCall, L. (2005) ‘The Complexity of Intersectionality’, Signs, 3, 1772–1800.
Smith, Rh.K.M. (2012) ‘Equality and non-discrimination’, in Textbook on International
Human Rights, 5th edition. Oxford: Oxford University Press, 195–196.
Spivak, G.C. (1987) In Other Worlds: Essays in Cultural Politics. New York: Methuen.
Supik, L. (2008) ‘Bedeutung und Relevanz von Mehrfachdiskriminierung. Eine soziologische Einführung’, Presentation at the conference “Diskriminierung: einfach –
doppelt – mehrfach?”, Olten; online http://www.mehrfachdiskriminierung.ch/tagungsbeitrage/supik_bedeutung_mehrfachdiskriminierung.doc (accessed 21.03.2014).
30
Walgenbach, K., et al. (eds.) (2007) Gender als interdependente Kategorie Neue Perspektiven auf Intersektionalität, Diversität und Heterogenität. Opladen/Farmington Hills:
Barbara Budrich.
Walgenbach, K. (2014) Heterogenität – Intersektionalität – Diversity in der Erziehungswissenschaft. Opladen/Farmington Hills: Barbara Budrich.
PART I: LEGAL APPROACH TO NON-DISCRIMINATION OF A CHILD 31
PART I:
LEGAL APPROACH TO
NON-DISCRIMINATION
OF A CHILD
32
CHAPTER 1: An introduction to the international protection of human rights 33
CHAPTER 1:
AN INTRODUCTION TO
THE INTERNATIONAL PROTECTION
OF HUMAN RIGHTS1
Paraskevi (Paroula) Naskou-Perraki
Paraskevi Naskou-Perraki, Dr. Dr.h.c. is Professor of International law and International Organizations at the Department of International and European Studies, University of Macedonia, Thessaloniki, Greece, UNESCO Chair Holder of Intercultural Policy. [email protected]
1. Introduction
The purpose of this teaching material is to navigate the reader through the
complex topic of children’s rights and non-discrimination. In order to do so
we deemed appropriate to pursue this effort by explaining certain basic things
about the international protection of human rights to which the principle of
non-discrimination as such is incorporated.
The general principle of equality and non-discrimination penetrates and
pervades all conventions, treaties, declarations and resolutions that were
drafted after the creation of the United Nations.2
This is a principle that was firstly seen in its preliminary form within the
Charter of the United Nations3 and then was fully expanded, enlarged and
diversified in other international texts where it gained its true extent as a result of an effort to abolish all forms of discrimination. The United Nations has
been quite successful in its struggle against discrimination.4
1
The author wishes to express her gratitude to Mr. Manos Kalaintzis for his academic research.
2
See, Struggle against Discrimination, Studies on Human Rights, UNESCO, France, 2004.
3
Art. 1, 3 of the Charter of the United Nations.
4
See for example among others the Convention on the Elimination of all forms of Discrimination (CERD) and its rich case law.
34
We can easily find and categorize the recognized grounds that discrimination can be based on: gender/sex, sexual orientation, race, color, descent and
ethnic origin, nationality, language, religion and belief, disability, age, political or other opinion, marital, parental and family status.5
The above list is not exhaustive, as intolerance and prejudice are unfortunately common phenomena in a diverse and pluralistic environment. A comprehensive universal conventional framework has been dispatched in order
to be mobilized in a perpetual fight with the issue of discrimination so as to
safeguard the general principle of equality.
2. General Considerations about Human Rights evolution
The international protection of human rights is a new branch of international
law, which has been developed in a rapid way after the 2nd World War and the
adoption of the Universal Declaration of Human Rights (UDHR-1948)6. Even
the theory of international law was adapted to new circumstances, since the
individual becomes a subject of international law, protected additionally to
domestic by international norms.7 An impressive corpus of rules and principles of international acts was adopted either conventional or declarative
changing in a positive manner the position of the individual and the group of
individuals in the national societies as well as at the international level.
The common ground for the evolution of human rights is the respect and
protection of the dignity of the individual and worth of the human person
despite the diversity of numerous cultures that make up today’s world. Human rights can be seen as the ultimate status of progress in the evolution of
humankind, as the core values for the survival and prosperity of all mankind.
The whole meaning of human rights is enshrined and well-contained in the
famous quote of Nelson Mandela: ‘‘to deny people their human rights is to challenge their very humanity.’’ 8
The effort of the international community to protect human rights is constant in almost all parts of the world and evident in the proliferation of human
rights treaties and establishment of control protection mechanisms at universal as well as regional level.
5
International Centre for the Legal Protection of Human Rights, Non discrimination in
International Law: A Handbook for Practitioners, Interights, London 2011, p. 4–11.
6
G.A. Res. 217 A (III), 10 December 1948.
7
See in general T. Skouteris and A Vermeer-Kunzli(Eds.), The Protection of the Individual
in International Law, Essays in honour of J. Dugard., Cambridge University Press, 2007 p. 25.
8
Joint Session of the House of Congress, Washington DC, USA, 26 June 1990.
CHAPTER 1: An introduction to the international protection of human rights
35
Nowadays, the theory of the three generations9 of human rights is considered obsolete, as we observe that due to the groundbreaking steps taken on
the field, human rights are universal, indivisible, interdependent and interrelated.
2.1. Universal/ Regional Protection
Universal protection of human rights encompasses basically the study of the
UN System, the human rights treaties adopted within the framework of the
United Nations (UN), the procedures and mechanisms established by the principal or subsidiary UN bodies, the Specialized Agencies and other bodies or
programs functioning within the UN System. Human rights protection never
settles as long as violations are still being committed. It is an evolving and
malleable area of international law with a great rate of adaptability, where new
bodies are created, additional texts are drafted (i.e. Optional Protocols)10 and
the protection is becoming more specialized and individualized(immigrant
workers, people with disabilities, indigenous etc).
Regional Protection of human rights has also been developed in the past
60 years; starting with the European Convention of Human Rights and Fundamental Freedoms (1950), followed by the American Convention on Human
Rights (1976), the African Charter on Human and Peoples’ Rights (1981) and
the Arab Charter on Human Rights (2006). A quite new development in the
Asian Region is the ASEAN Human Rights Declaration (2012).11
There are distinctions between the UN and the regional protection of human rights, and this reflects an incremental development of human rights
law whereby principles and rules in these different systems either are, or are
not consistent. This is evident in the fact that in other regions the progress
of the establishment of regional human rights protection system is slow. For
9
The first generation includes civil and political rights which were justiciable (i.e. the violation of which gives the individuals access to the court), while the second generation includes
economic, social and cultural rights which were not justiciable as well as the third generation
of rights which are included in the African Charter of Human and Peoples’ Rights of 1981 (i.e
the right to solidarity, self-determination, right to development and others). The abandonment of the three generations theory is due to the adoption of the Optional Protocol to the ICESCR according to which individuals can bring communications against their country before
the relevant Committee and after the adoption of the Protocol amending the African Charter,
creating an African Court for Human and Peoples’ rights, with the right for individual application. A second Protocol to the African Charter merged the Court of the African Union and
the Court of the Protocol, creating the African Court of Justice and Human Rights situated in
Arusha.
10
Optional or Additional Protocols to a treaty are international acts which either add new
human rights or amend certain provisions of the treaty or the mechanism of implementation.
11
See P. Naskou-Perraki, International Mechanisms protecting Human Rights. Texts, comments, case law, Ant. N. Sakkoulas – Bruylant, Athens- Brussels, 2010, p. 25–46, 343–344,
446–448, 467–468, 535–536, 595–596, 613.
36
example, in certain sensitive parts of the world, i.e. the Arab states, it was
only recently that a new Charter of Human Rights was adopted, and in Asia
this effort was just finalized only last year. However, it should be noted that
the level of protection granted by regional human rights instruments and
control mechanisms is higher than that afforded by universal human rights
treaties, mostly due to the political and cultural cohesion that each region
demonstrates. The homogeneity of textures within a certain geographic terrain allows the protection to be oriented to the key-problems in ways that
are more compatible to the civil components of those societies. The universal
framework lacks agility and flexibility in terms of individuality, to which the
concept of human rights is intimately and inevitably linked; meanwhile, the
regional system is known for its vigorousness – a feature that is lost in the
universal structure’s immense complexity.
2.2. Basic Principles for the Protection of Human Rights
The basic principle of international human rights law lies with the territorial
sovereignty and equality of states. All states have the primary responsibility
to protect individuals under their jurisdiction as foreseen in national constitutions, national laws and laws ratifying international treaties. The prerequisite for the application of international law is the ratification of international
conventions-protocols or other international acts by states.
2.2.1. Exhaustion of domestic remedies
Based on the above principle, individuals have to solve their problems within
the national framework before appealing to international mechanisms. Consequently, the protection of human rights is mainly national12, while international protection is subsidiary from the mechanisms’ point of view. Individuals or groups of individuals are obliged to address the matter and provide
adequate redress to the terms of this principle by applying local remedies.
12
It is worth mentioning at this point that according to G.A. Res. 48/134 of 20 December 1993 (Paris Principles) each state is obliged to establish by legislation a National Human
Rights Institution/ Committee (NHRIs), which will be independently working as an advisory
body to the government and the parliament for the implementation of the international treaties and the promotion and protection of human rights. The principles envisage that NHRIs
may have a ‘’quasi-judicial’’ power in order to work effectively. See among others B. Burdekin,
National Human Rights Institutions in the Asia-Pacific region, The Raoul Wallenberg Institute Human Rights Library, M. Nijhoff, Leiden, 2007, p. 7 et seq., Asia-Europe Meeting, National and Regional Human Rights Mechanisms, Proceedings of the 11th Meeting on Human
Rights, Prague, 20–25 November 2011, Asia-Europe Foundation, SinG.A.pore, 2012, p. 18 et
seq.
37
2.2.2. Hierarchy of Human Rights
There are certain rights included in constitutions as well as in international
treaties which may not be derogated under any circumstances, mainly war or
public emergency threatening the life of the nation. The derogation clause is
common in human rights treaties and includes certain human rights which
are protected under any circumstances.13
The fact that four of these rights – the right to life, the prohibition of torture, prohibition of slavery, and the non-retroactivity of criminal offences – are
common to all derogation clauses, is evidence of their status as jus cogens14
rules of international human rights law, higher in the hierarchical denomination. The principle of non-discrimination can be added to this category, since
every human rights act includes a non-discrimination clause.15
2.2.3. Sources of human rights law
The basic sources of human rights law are the conventions. There are more
than 300 international Conventions, Treaties, Protocols, Covenants and others, adopted by the General Assembly of the UN, the Specialized Agencies and
the Regional Organizations. For educational reasons sources can be divided
in general sources – as the two Covenants on Human Rights and on a regional
level the European Convention on Human Rights, the American Convention
of Human Rights, the African Charter on Human and Peoples’ Rights etc. –
and special sources that come from texts with a limited and specific scope,
for example the Convention on the Elimination of Racial Discrimination,
the Convention against Discrimination in Education, the Convention for
the Elimination of Discrimination Against Women, the Convention on the
Rights of the Child, the Convention on the Status of Refugees etc.
Each state ratifying a treaty undertakes the obligation to introduce it to its
internal legal order and implement it in good faith, without the principle of
reciprocity.16
13
These are art. 4 of the International Covenant of Civil and Political Rights, art. 15 European Convention of Human Rights, art. 27 American Convention on Human Rights, and art.
4 Arab Charter on Human Rights.
14
Art. 53 of the Vienna Convention on the Law of Treaties under the title: ‘’Treaties conflicting with a peremptory norm of general international law (jus cogens)’’ reaffirms: “A treaty is
void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as
a whole as a norm from which no derogation is permitted and which can be modified only
by a subsequent norm of general international law having the same character.’’, See D. Shelton
‘’Normative Hierarchy in International Law’’, 100 AJIL, 2006, p. 291.
15
See i.e. UDHR art.1,2, ICCPR and ICESC art. 2, 3, CRC art. 2, CRPD art. 5, 6 etc.
16
Reciprocity contains equivalent treatment of foreign citizens in another state. The principle of reciprocity does not apply as far as human rights protection is concerned. For example
38
Protecting Human Rights is a rule of national obligation. State organs implement national law or international treaties ratified by national parliaments.
International protection is subsidiary and intervenes only as rule when national protection fails.
3. The protection of Human Rights at the Universal Level: the United
Nations System
3.1. The United Nations Charter
The UN Organization17 has been a pioneer in human rights protection since
its establishment. This of course did not come unchallenged. In its preamble,
the Charter “proclaims the faith in the fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women…” and in a number of its provisions emphasizes the importance that is
rested upon these rights.18 According to article 1 among the purposes of the
Organization is “respect for human rights and for fundamental freedoms for
all without discrimination as to race, sex, language or religion”. In art. 1, 3 the
Charter undertakes the burden to coordinate all states to achieve international cooperation in promoting and encouraging respect for human rights and
for fundamental freedoms. This provision transformed the face of the world
as with its intentional vagueness it brought an unintentional development, a
component that the drafters of the Charter did not foresee.
In addition, the obligation of states to encourage the respect for human
rights and cooperation with the Organization’s assistance in order to successfully achieve this very purpose is mentioned in other provisions of the Charter. Article 2, 7 of the Charter stipulates that the Organization should not
“intervene in matters which are essentially within the domestic jurisdiction
of any state”.19 In recent years the international community has identified the
need to shift its unyielding interpretation in order to adapt to the new status
quo. We should take under consideration the fact that human rights protection does not solely fall within the domestic jurisdiction, especially when the
states fail to respond effectively to atrocities.20
if a country violates the rights of citizens of the state X, that does not imply that the other state
will do the same to the citizens of the first state.
17
Τhe UN Charter was adopted in 1945, came in force on the 24th October 1945, with 193
member states, as of February 2014. See UNTS vol. 1.
18
Arts.1, 8; 13(b); 55(c); 62(2); 76(8) of the UN Charter.
19
See also G.A. Res. 2131(xx), 21.12.1965, G.A. Res. 2625(XXV) of 1970, together with the
Final Act of Helsinki of 1975.
20
A characteristic example is the Apartheid in S. Africa and the condemnation by the G.A.
Res. 2506 (XXIV) of 21.11.1969 as well as humanitarian intervention and the new notion ‘’responsibility to protect’’ giving the option to the international community to intervene in cases
of crimes against war, genocide, etc.
39
It is now accepted that the human rights provisions of the Charter have the
force of positive international law. As such they establish basic duties that all
members must fulfill in good faith.21
3.1.1. Main Institutions protecting Human Rights
The main Institutions of the UN, entrusted to pursue the principles and purposes set forth in the preamble and the 1st article of the Charter, are the General Assembly (G.A.) and the Economic and Social Council (ECOSOC). They
have been vested with the powers to institute subsidiary organs22 in order
to assist them in their mission. Within that competence, a variety of bodies,
Commissions, Committees and Sub-Committees have been created to which
the Organization has delegated specific functions in the field of human rights
promotion and protection.23 These organs and institutions comprise a quite
complex, but effective structure that operates in the framework of the Organization.
3.1.1.1. The General Assembly
The G.A. is the principal organ of the UN, whereby all member states participate with full competence to deal with issues that fall within the scope of the
Charter to ensure the realization of human rights and fundamental freedoms
for all in respect with the principle of equality and non-discrimination.24
Within its context operate six Committees, each of them dealing with human rights within their mandates as well.25 Significant is the role of the third
Committee of the G.A. (Social, Cultural and Humanitarian Committee), the
fourth Committee (Special, Political and Decolonization) both of which have
contributed heavily to the promotion of human rights. Apart from those the
sixth Committee (Legal), with a standing-setting process, constitutes a major forum of negotiations for new international legal instruments on human
rights as well.
At times, although not on a frequent basis, the G.A. had recourse to the
advisory proceedings mechanism before the International Court of Justice
(ICJ), in order to receive a clarification and a certain interpretation on questions of international law, dealing with human rights.26
21
Namely Arts. 1,3, art. 8, art. 13, art. 55a,c, art. 62,2, art. 73 a,c of the Charter.
See Arts. 13, 55, 56, 62 and 68 of the Charter.
23
Rh. K.M.Smith, Textbook on International Human Rights, Fifth Edition, OUP, Oxford,
2012, p. 56–82.
24
See Art. 13 of the Charter.
25
See, Basic Facts about the UN 2014, UN Department of Public Information, New York
2013, pages 24–25.
26
See Advisory Opinions of ICJ i.e. Lega.lity of the Threat or Use of Nuclear Weapons (1996)
and most recently, in the case of Lega.l Consequences of the Construction of the Wall in the
22
40
It has also established various subsidiary bodies under the mandate of carrying out its duties and has contributed to the adoption of a number of international Conventions and Declarations, starting with the adoption of the
UDHR.
Since then, a long string of international Conventions has followed; some of
theseincorporate a mechanism of protection (Commission or Committee).27
For the purpose of this book, special attention will be focused on the Convention on the Rights of the Child (1989) and the three Optional Protocols,
the first on the rights of the Child on the involvement of children in armed
conflict (2000), the second on the sale of children, child prostitution and child
pornography (2000), and the third on a Communications Procedure (2012).
The CRC is considered to be the most complete Convention on the protection
of human rights since it incorporates all categories of human rights (civil, political, economic, social and cultural) as well as special categories of children
like refugees, disabled, immigrants and others.
The G.A. also adopts a prolific number of resolutions, which although of a
legally non-binding nature, make a particular contribution to the formation
of international law and the emergence of other valuable aspects for consideration. This kind of decision is often referred to as soft law; in other words
Occupied Palestinian Territory (2004) Especially in the latter case this was deemed an alternative means of using pressure to stop possible or existing human rights violations, South
African presence in Namibia (1971).
27
As for the International Convention on the Prevention and Punishment of the Crime of
Genocide (1948); Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949); the International Convention on the Elimination
of All forms of Racial Discrimination (1965); International Covenant on Civil and Political
Rights (1966) and the Optional Protocol of the Covenant on Civil and Political Rights (1966)
and the Second Optional Protocol of the Covenant on Civil and Political Rights, aiming at the
abolition of death penalty (1989); International Covenant on Economic, Social and Cultural
Rights (1966) and the Optional Protocol of the Covenant on Economic, Social and Cultural
Rights (2008); Convention Relating to the Status of Stateless Persons (1954); Convention on
the Reductions of Statelessness (1961); Convention on the Non-Applicability of the Statutory
Limitation to War Crimes and Crimes against Humanity (1968); International Convention on
the Suppression and Punishment of the Crime of Apartheid (1973); Convention on the Elimination of all forms of Discrimination Against Women (1979) and the Optional Protocol to
the Convention on the Elimination of all forms of Discrimination AgaA.inst Women (1999);
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) and the Optional Protocol to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (2002); the International Convention on
the Protection of the Rights of All Migrant Workers and Members of their Families(1990),
International Convention for the Protection of All Persons from Enforced Disappearance
(2006), Convention on the Rights of Persons with Disabilities (2006) and the Optional Protocol to the Convention on the Rights of Persons with Disabilities (2006).
For more details see: H.J. Steiner, P. Alston, R. Goodman, International Human Rights in
Context, Third edition, Oxford, 2008, p. 151 et seq.
41
the resolutions integrate norms which reflect the member states’ intention
regarding the evolution of positive law in the future through the adoption of
either an international convention or customary law. Soft law as a term describes the maturing process of international law; it marks the transmutation
of a concept from a political and moral principle to a legal right and consequent obligation.
Finally, one should not underestimate the G.A.’s contribution to the gathering and the examination of all the reports submitted by the various Committees through ECOSOC with regard to the ratification and implementation
of treaties and conventions that are signed by the member states. It is the universality of such a forum that adds immense pressure to a state, which constantly violates its obligations under international treaties and is reported in
front of the wholesome of the international community through the concluding reports, which are published by the relevant committees for each state.28
Regardless of the non-binding character of this institution’s decisions, its input to human rights is enunciated merely in the frequent citation of the topic.
One of the most characteristic examples on the issue of non-discrimination
was the phenomenon of apartheid and the discrimination of African people
in South Africa. This incident led many organizations to expel South Africa
from their list of members.29
3.1.1.1.1. Subsidiary bodies of the General Assembly: The Human Rights
Council
The Human Rights Council (HRC) was created30 as a subsidiary body of the
G.A.31, replacing the Commission on Human Rights which operated initially under ECOSOC32 and had been many times a subject of criticism for its
unsatisfactory work as well as its membership. The HRC is composed of 47
members who are persons of high moral character and qualifications, real
experts regarding the promotion and protection of human rights.33 The HRC
is assisted by a number of special rapporteurs and independent experts who
28
See the CRC Committee’s Concluding Reports on different states parties.
ILO and UPU.
30
G.A. Res. 60/251, 15 March 2006. K. Annan, In Larger Freedom: Towards Development,
Security and Human Rights for All, G.A., A/59/2005/Add.3,26/05/2005, § 182.
31
N. Schrijver, The UN Human Rights Council: A new ‘‘society of the committed’’ or just
old wine in new bottles, in Skouteris Th.,Vermeer-Kunzil A. (eds), The Protection of the individual in international law. Essays in honour of John Dugard, 2007, p. 181.
32
Art. 68 of the Charter, The Commission was created in 1946, while in 1947, the Sub-Commission on the Prevention of Discrimination and the protection of Minorities was established.
33
13 from Africa, 13 from Asia, 6 from Eastern Europe, 7 from Western Europe and others,
and 8 from Latin America and Caribbean.
29
42
offer services on a free-salary basis.34 An Advisory board of 18 independent
experts assists the work of the HRC.
The main functions of the HRC are among others to 1) promote education and human rights learning, to 2) contribute to the full implementation
of human rights’ obligations, to 3) review periodically on a global level the
implementation of human rights, to 4) cooperate closely with governments,
regional organizations, national committees on human rights and the civil
society, to 5) submit an annual report to the G.A.
Individual communication
The procedure of individual communication was based on the “1503” procedure of ECOSOC.35
The HRC was instructed by the G.A. to upgrade within one year, if deemed
necessary, the mechanisms, the function and the competence of the former
Commission on Human Rights with the purpose of establishing a system
of special procedures on individual communication. The latter would be
judged – objectively – on the effectiveness of the protection of the alleged
victim.
According to Resolution 5/136, the communication that is admitted before
the HRC shall fulfill the following requisites:
•
•
•
•
•
34
it should concern any human rights violations of any state and under
any circumstances;
it should maintain its confidentiality;
it should not be anonymous or ill-manifested – otherwise it will not be
admitted to the Working Group on Communications (WGC) which
examines the communications along with the Secretary-General;
any domestic remedies should have been exhausted, unless it appears
that such remedies would be ineffective or unreasonably prolonged;
should it become admitted, to be communicated to the state concerned
in order for the latter to form its arguments.
The Council deploys numerous rapporteurs each year. The institution is designed to offer
valuable insight in specific aspects of human rights, and eligible for positioning are accredited
experts on the field. Especially on Child protection: i) Special Rapporteur on trafficking in
persons, especially in women and children; ii) Special Rapporteur on the sale of children,
child prostitution and child pornography; iii) Special Rapporteur on the right to education;
iv) Independent Expert on minority issues.
35
G.A. Res. 60/251§ 5 which was modified by ECOSOC Res. 2000/3 and the decision of the
Human Rights Council under the title ‘’Human Rights Council: Institution-Building’’, ECOSOC Res. 1503 (XLVIII) 27 May 1970.
36
Res. 5/1 of the HRC.
43
The WGC, composed of five members of high integrity, examines the admissibility of the communications. The WGC under the HRC Complaint Procedure refers particular situations for examination to the Working Group on
Situations (WGS). The WGS makes recommendations about the necessary
measures to be taken. The HRC shall take the final decision.
Special procedures
The UN Special Procedures is deemed to be an effective and flexible mechanism. The term “Special Procedures” includes individuals variously designated as “Special Rapporteur”, or “Independent Expert”, Working Groups
usually composed of five independent experts, “Special Representative of the
Secretary-General” and “Representative of the Secretary-General”. According
to this mechanism, a limited number of mandateholders are mandated by the
HRC to investigate the situation of human rights in all parts of the world, irrespective of whether a particular government is a party to any of the relevant
human rights treaties.
In order to maintain the integrity of Special Procedures, the Coordination
Committee was established having as main tasks to enhance the coordination
among mandate holders and to act as a bridge between them and the Office of
the High Commissioner for Human Rights (OHCHR), the broader UN human rights framework, and civil society, thus promoting the standing of the
Special Procedures system.
3.1.1.2. ECOSOC
This UN organ consisting of 54 members is authorized by the Charter to enact
laws to promote respect and the guarantee of human rights and fundamental
freedoms, to draft treaties and to submit them to the G.A. for approval, to convene international conferences on human rights, and to set up Committees on
the protection of human rights. The Charter specifically provides that ECOSOC shall promote “higher standards of living, full employment, and conditions of economic and social progress and development….[as well as] universal respect for, and observance of, human rights and fundamental freedoms
for all without distinction as to race, sex, language, or religion.”37Following the
agreement between UN member states and Specialized Agencies, ECOSOC
may also receive reports on the implementation of ECOSOC’s decision and
the G.A.’s recommendations by the states and communicate its observations
regarding the aforementioned reports of the G.A. in its annual report. The
Commissions which function within the context of international treaties that
are adopted by the G.A., submit their reports to ECOSOC, which are then
submitted to the G.A.
37
Art.55 (a) and (c) of the Charter.
44
ECOSOC is linked to a number of Specialized Agencies and coordinates
their activities and collaborates with the civil society via NGOs.38 It has also
created a number of subsidiary bodies.39
3.1.1.3. The Security Council (S.C.)
The S.C. has occasionally tackled issues with regard to violations of human
rights while its main mandate is the preservation of international peace and
security. When international peace is under threat due to violations of human
rights, the S.C. may act in accordance with Chapter VII of the Charter.
It is noteworthy that in cases where violations of human rights are implicating a permanent member state of the S.C., the latter was stalemated leading
to inaction due to the exercise of the veto power.40 After the end of the Cold
War, the Security Council has become quite active and initiated a number of
measures in order to safeguard peace and security worldwide. It has taken
special measures to confront situations in Sudan, Angola, Afghanistan, Congo, and Libya etc in the context of Chapter VI and VII of the Charter, while
creating ad hoc Criminal Tribunals to effectively deal with humanitarian law
violations.41
The S.C. has established the Working Group on Children and Armed
Conflict42, in monitoring and reporting on children affected by armed conflict.43 The Working Group is mandated to: a) review reports on violations
against children, b) develop and implement national action plans of children
in armed conflict44,c) make recommendations to the S.C. on measures to
promote the protection of children affected by armed conflict. The Secretary
General drafts periodic reports, which are submitted to the Working Group
for consideration and are officially presented by the Special Representative
for Children in armed conflict.45 After thorough assessment of the situation,
the Working Group dispatches recommendations to the conflicting parties.
38
Art. 63 of the Charter.
Namely the Commission on Population and Development, Commission for Social Development, the Commission on Sustainable Development, the Commission on Status of women,
and the Commission on Crime Prevention and Criminal Justice.
40
i.e. Syria 2013.
41
The S.C. by Res. 808 and 827 (1993) established the International Criminal Tribunal for
the Former Yugoslavia and by Res. 955 (1994) the relevant for Rwanda.
42
S.C. Res. 1612 (2005).
43
According to humanitarian law, there are six main violations against children in situations
of armed conflict: killing or maiming of children; recruitment or use of children as soldiers;
rape and other grave sexual abuse of children; abduction of children; attacks against schools
or hospitals; denial of humanitarian access for children.
44
S.C. Res.1539 (2004).
45
The first Special Representative ever to be appointed is Mrs Leila Zerrougui from Algeria,
who was granted the rank of the Under-Secretary General.
39
45
The latest recommendations were issued in 2013 and dealt with the situations
in South Sudan, Democratic Republic of Congo, Central African Republic,
Philippines and Syrian Arab Republic.
3.1.1.4. The International Court of Justice (ICJ)
The ICJ does not entertain jurisdiction for cases that concern individuals,
however it may hear interstate petitions that regard the violation of conventions which protect human rights or concern the interpretation of the provisions of these conventions.46 The ICJ has promoted human rights by examining in a series of jurisprudence the character of several human rights
provisions under the prism of jus cogens rules or erga omnes obligations.47
3.1.1.5. Secretary General (SG)
The S.G. participates in many meetings of the UN bodies and has often been
invited to accomplish an important role in the field of human rights. The S.G.
may “bring to the attention of the S.C. any matter which in his opinion may
threaten the maintenance of international peace and security” and uses his
“good offices” confidentially to raise human rights concerns with member
states, including issues such as the release of prisoners and commutation of
death sentences. Results of such communications are reported to the S.C. The
world has witnessed the paramount contribution of the S.G. in the maintenance of peace, security, and the promotion of human rights and the reform
of the Organization through his reports to the 3 principal organs (G.A., S.C.,
ECOSOC) that intend to draw their attention on certain urgent matters while
giving valuable insights.48
3.1.1.6. UN High Commissioner for Human Rights (HCHR)
In 1993, the UN established the new position of the HCHR.49 He/She has the
rank of the Deputy Secretary General and is appointed for four years with a
possibility of one term renewal, following a recommendation by the SG with
the approval of the G.A.
The High Commissioner carries out the “good offices” with regard to the
protection of human rights on behalf of the SG. The HCHR is deemed to be
46
i.e. Bosnia-Herzegovina vs. Serbia and Montenegro in 1992, Croatia vs. Serbia and Montenegro in 1999 violation of the Convention against the Crime of Genocide.
47
Erga omnes obligations mean that all states can be held to have a legal interest in their
protection. Barcelona Traction (1970), one of the most world renowned cases in the history of
the court, Nicaragua v. USA (1986), Portugal v. Australia (1995), Legality on the threat or use
of Nuclear Weapons (1996 – Advisory Opinion), Bread (1998), LaGrand (1999), F.E. Schwelb,
The ICJ and Human Rights clauses of the Charter in 66 AJIL., p. 337–350.
48
See Arts. 97–99 of the Charter.
49
G.A.Res.(48/141, 20.12.1993) and Arts. 1, 13, 55, of the Charter.
46
the UN official with main responsibility for human rights related activities. It
is his/her responsibility to promote and protect human rights for all and to
maintain a continuing dialogue with member states bringing to light violations of human rights that occur worldwide. The HCHR takes action, either
in the form of cooperation and coordination of activities or through diplomatic or public pressure to governments in order to stop the violations and
prevent their recurrence. Specifically, the HCHR shall bear the responsibility
for all the activities undertaken under the auspices of the UN with regard
to human rights, i.e. crisis management, prevention and early warning, assistance to states in periods of transition, promotion of substantive rights,
coordination and rationalization of the human rights programme.
His/Her tasks also include the international cooperation on human rights
affairs, the encouragement and the coordination of the UN system for any
activities in the field of human rights, the provision of support to organs, bodies or Committees (as set up by the various international conventions) that
deal with the protection of human rights, the undertaking of preventive action for violations and prompt response to violations of human rights, the encouragement of establishment of national committees on human rights, and
the dissemination of information and provision of technical assistance when
deemed necessary for the protection of human rights. The HCHR shall cooperate with governments, judicial bodies, regional organizations, universal
organizations, NGOS, civil society, and help in the promotion of the protection of human rights on a national level in accordance with the international
human rights conventions.
3.2. Specialized Agencies
The UN Specialized Agencies are intergovernmental organizations incorporated into the UN system, which are active in a constrained and specialized
field.50 They function independently and they co-operate with the UN. They
have their own institutions and they shape up their own policies on their fields
of specialization and, thus, the field of human rights if it falls within their
competence. Some of the Specialized Agencies whose mandate includes the
protection of human rights are the International Labour Organization (ILO)
with more than 190 Conventions some of which are referring to the protection of the Child51, the UN Educational Scientific and Cultural Organization
(UNESCO) with a characteristic Convention against Discrimination in Education (1960) and the Additional Protocol (1962) including a mechanism for
50
See Art. 57, 63 of the Charter.
In particular ILO Conventions protecting Children among the recent ones are 182 and
190 (1999).
51
47
protection52, the World Health Organization (WHO), as well a the Food and
Agriculture Organization (FAO). There are also other international organizations that have recently developed a human rights strategy in certain fields
of their activities such as the World Bank, the International Monetary Fund
(IMF), and the World Trade Organization (WTO). Apart from the aforementioned agencies, the UN has created a number of bodies and programs such as
the UN Conference on Trade and Development (UNTAD), the Office of the
UN High Commissioner for Refugees (UNHCR), the UN Population Fund
(UNFPA), the UN Children’s Fund (UNICEF), the World Food Programme
(WFP), and the UN Human Settlement Programme (UN-Habitat).
3.3. Main Conventions Protecting Human Rights
In the framework of the UN, some human rights treaties are characterized as
of great value. Apart from the provisions of the UN Charter, the UDHR, the
two Covenants and their Protocols constitute the ‘’Bill of Human Rights’’ at
a universal level. Thus, special emphasis will be given to these international
instruments.53
3.3.1. Universal Declaration of Human Rights (UDHR)
The UDHR54 was the first human rights instrument to be adopted by the UN.
It is comprised by a preamble and 30 articles and enshrines all civil, political,
social, economic and cultural rights. It is a unique mixture of rights of the
most diverse nature.55 The proclamation of the Article 1 is of outmost importance and its meaning reflects the evolution of human rights legal instruments: ‘’All human beings are born free and equal in dignity and rights. They
are endowed with reason and conscience and should act towards one another
in a spirit of brotherhood.’’ This is the very first time that a conventional text
makes such a clear cut to ensure and reaffirm the inherent character of equality in all of its forms, with a special emphasis on equality in terms of rights.
No human being shall be deprived of his/her rights as he/she is born bearing
them in his/herbare existence. Article 2 comes to solidify the general principle of equality and non-discrimination in a triumphant manner.56
52
Human Rights: International Protection, Monitoring, Enforcement, J. Symonides ed.,
UNESCO Publishing, 2003 p. 91–134.
53
Non-discrimination in International Law: A Handbook for practitioners, o.p, p. 4–11.
54
G.A. Res.217(A) III,, 10 December 1948.
55
See L. Henkin, The International Bill of Rights: The Universal Declaration and the Covenants, in R. Bernhardt and JA. Johowicz (ads), International Enforcement of Human Rights, 1,
1987,Ph. Alston, Reflection on the Universal Declaration of Human Rights, 50th Anniversary
Anthology, M. Nijhoff, The Hague, 1998, p. 28 et. seq.
56
A. Eide, G. Alfredsson, G. Melander, A. Rehof, A. Rosas(eds.) The Universal Declaration
of Human Rights: A Commentary, Scandinavian University Press, Oxford, 1992.
48
As a G.A. resolution, the UDHR lacks a legally binding background and
thus was at first seen as vague and as an effort to put to rest peoples’ rightful demand. Its purpose was to provide “’a common understanding of human rights, according to its preamble, and to serve as a common standard of
achievement for all peoples and all nations...”.57
Since its adoption, however, a domino of legal acts has followed, which in
their vast majority used the UDHR as a basis and depicted the Declaration’s content reaffirming that way its colossal significance. The multi-dimensional legal
efflorescence that followed in the subsequent few decades vindicated the drafters
of the UDHR and gave the document the high status that it deserved, as customary international law or as including general principles of law erga omnes.
3.3.2. International Covenant on Civil and Political Rights (ICCPR)58
The ICCPR, adopted in 1966, lists a number of civil and political rights, more
than the UDHR, as well as obligations that states parties have to implement
after ratification. To these belong, among others, the principle of non-discrimination based on race, color, sex, language, religion, political or other
opinion, national or social origin, property or birth (art. 2,1)59, as well as the
protection of members of ethnic, religious or linguistic minorities and their
right to enjoy their own culture, to protest and practice their own religion, or
to use their own language (art. 27).60
The mechanism provided by the Covenant is the Human Rights Committee, a body of 18 independent experts (arts. 40–41) with the main task to
monitor the implementation of the Covenant.
All states parties are obliged to submit reports to the Committee on their
progress of implementation on the civil and political rights of the Covenant.
Additionally, article 41 of the Covenant provides for the Committee to consider inter-state complaints. The Committee’s competence is expanded with
the first Optional Protocol61, which gives the Committee the competence to
examine individual complaints with regard to alleged violations of human
rights by states parties to the Protocol. As prerequisites for the admissibility
of individual communications, article 2 defines the exhaustion of all available
domestic remedies.62 Additionally, article 2 of the Optional Protocol sets out
57
B. Simma and Ph. Alston, The source of Human Rights Law; Customs jus cogens and
General Principles, 12 Australian Yearbook of International Law, 1992, p.82.
58
G.A. Res. 2200A (XXI), 1966, 167 ratifications.
59
See B.G. Ramcharan, Equality and non-discrimination, in L. Henkin (ed.), The International Bill of Human Rights, 1981, p.246 seq.
60
See General Comment No 23 (50) art. 27 Doc. CCPR/C/21/Rev.1.Adopted 5, 1994.
61
62
Th. Buergenthal, D. Shelton, D. Stewart, International Human Rights in a nutshell, West
Group, United States of America, Fifth Edition 2009, p.43–63.
49
three negative conditions in order for the communications to be admissible,
namely they must not be anonymous, abusive of the “right of submission’’ or
“incompatible with any provision of the Covenant”. A second Optional Protocol was added to the Covenant in 1989 and its objective is the abolition of
death penalty.63 The case law of the Committee is impressive.64
Apart from the aforementioned, the Committee is responsible for the interpretation of the Covenant and its Optional Protocols and for that sake issues General Comments65 that include guidelines to facilitate states parties
implementing the provisions.66 Over the years, the General Comments have
been developed to a quasi-judicial instrument.
3.3.3. International Covenant on Economic, Social and Cultural Rights
(ICESCR)67
The ICESCR was adopted in 1966 and enumerates several basic rights that are
attached to the economic, social and cultural welfare of a person and aims at
its overall development and proper integration in the social structures. The
Covenant offers the framework in which the states should enact and take all
the necessary steps to affirm a standard of protection of the rights included
in the Covenant. The Covenant recognises the sensitivity of those rights as
well as the diversity of a state’s capacity to attempt the protective implementation of its provisions. Thereby, as stated in Article 2, each member state is
responsible to undertake “steps, individually through international assistance
and cooperation, especially economic and technical, to the maximum of its
available resources, with a view to achieving progressively the full realisation
of the rights recognised in the Covenant.’’
The Committee on Economic, Social and Cultural Rights (CESCR68), a body
of independent experts that monitors the implementation of the Covenant
by its states parties and examines reports on the measures the states have
adopted, was established by ECOSOC in 1985.69 Designed in the same pattern as the Human Rights Committee, it examines states’ reports and until
2008 lacked the competence to consider individual communications. After
the adoption of the Optional Protocol Its competence was expanded and the
63
G.A. Res. 44/128, 1989, 78 ratifications.
For a detailed list of the case law see, P. Naskou-Perraki, International Mechanisms Protecting Human Rights, o.p., p. 62–134.
65
Art. 40, 4 ICCPR.
66
See among others General Comment N. 18: Non discrimination, 10/11/1989, CPPR.
67
68
P. Naskou-Perraki, The International Covenant on Economic, Social and Cultural Rights
and monitoring of it’s enforcement, in N. Aliprantis (editor), Social rights: challenges at European, regional and international level, Bruylant, Brussels, 2010, p. 179–213.
69
ECOSOC, Res. 1985/17, 1985.
64
50
Committee was empowered to consider individual communications as well.70
The Protocol entered into force in May 2013, following the required number
of ratifications.
Additionally, it has the competence to issue General Comments clarifying
the true proportions of the protective nexus that it has established, endorsing
legal certainty and correct implementation.
3.3.4. Other UN Treaties protecting Human Rights
Apart from the Bill of Human Rights, there are seven more international conventions dealing with specific categories protecting human rights and providing a control mechanism where individuals can send written communications in case the states’ parties violate their rights. These are:
Convention on the Elimination of Racial Discrimination (CERD)71, 1965 –
with an important case law by the Committee on the Elimination of Racial
Discrimination (CERD);
Convention on the Elimination of all forms of Discrimination against Women (CEDAW)72, 1979 – with the Optional Protocol of 1999 and an ongoing
case law before its Committee73 (CEDAW);
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)74, 1984 – with an Optional Protocol75 and a
very rich case law before the Committee (CAT);
Convention on the Rights of the Child (CRC), 1989 – with three Optional
Protocols, the first being on the involvement of children in armed conflict
(2000), second on the sale of children, child prostitution and child pornography (2000) and the third on an individual communications procedure (2012). The relevant Committee on the Rights of the Child (CRC) has
not provided any caselaw, yet;
Convention on the Protection of the rights of all Migrant workers and members of their families (CMW)76, 1990 – without any case law yet by the relevant Committee;
70
71
72
73
74
75
76
G.A. Res. A/RES/63/117, 2008.
G.A. Res. 2106 (XX), 1965.
G.A. Res. A/34/180, 1979.
G.A. Res. A/54/4, 1999.
G.A. Res. A/39/46, 1984.
G.A. Res. A/57/199, 2002.
G.A. Res. A/45/158/1990.
51
Convention on the Rights of Persons with Disabilities (CRPD)77, 2006 – with
an Optional Protocol78 (2006) which came in force recently and a limited
number of case law by the Committee;
Convention for the protection of all persons from Enforced Disappearance
(CED)79, 2006 – which also came into force recently. The relevant Committee has not provided any case law yet.
The Committees can consider a case concerning violations of human rights
after the exhaustion of local remedies; this is a procedure that takes quite a
few years in some cases.
All the above conventions issue General Comments/Recommendations
where they try to interpret certain provisions of the conventions and facilitate
states parties with the implementation, they can undertake provisional measures and contact inquiry in case of vast violations.
Due to the fact that this teaching material concerns the protection of children and their right to non-discrimination, we are going to elaborate more on
the Convention on the Rights of the Child.
3.3.4.1. United Nations Convention on the Rights of the Child (CRC)80
The CRC was adopted in 1989 and entered into force on September 2, 1990.
It is considered as the most complete human rights treaty and as the most
widely accepted human rights instrument. The Convention accords children
an extensive catalogue of civil, political, economic, social and cultural rights
‘’irrespective of the child’s or his or her parent’s or legal guardian’s race, color,
sex, language, religion, political or other opinion, national, ethnic or social
origin, property, disability, birth or other status.’’81 The CRC recognizes the
children’s vulnerability and observes the fact that they often are subject to unacceptable treatment. The Convention construes as its basis and main priority
the best interest of the child.
The CRC’s content is quite familiar since it borrows provisions from other
human rights legal instruments of the past, although the Convention’s innovation lies in the fact that children are singled out and have the privilege to
be exclusive subjects of an international treaty. The protection enshrined in
the Convention seeks to abolish a series of maltreating practices against children: economic exploitation, illicit use of drugs, sexual exploitation, trafficking, abuse, child-soldiers. Other than that, the Committee on the Rights of the
77
78
79
80
81
G.A. Res. A/61/106/2006.
Ibid.
G.A. Res. A/RES/61/177.
G.A. Res. A/44/25, 1989, 193 ratifications, except USA and Somalia.
Art. 2,1 of the Convention.
52
Child was established under the Convention with the special task to ‘‘examine
the progress made by states’’82 while it consists of 18 independent experts. The
Committee monitors the implementation of the three Optional Protocols to
the Convention – on the involvement of children in armed conflict and on
sale of children, child prostitution and child pornography83 – on a Communications Procedure, which will allow the Committee to consider individual
communications submitted by children regarding specific violations of their
rights under the Convention and its first two Optional Protocols. The Third
Optional Protocol entered into force on 14 January 2014 after the deposit of
the tenth instrument of ratification, offering to individual children or groups
of children the right to submit complaints in case of violation of their rights
under the CRC Convention and under the two other Protocols, taking under
consideration that their government has ratified this Protocol. Apart from
the aforementioned, the Committee is responsible for the interpretation of
the Convention and its Protocols and for that sake, issues General Comments
clarifying the true meaning of its provisions. 84
4. Protecting Human Rights at the Regional Level
In addition to the UN system of human rights protection at the universal
level, there is also regional protection of human rights. The examination of
the existing regional protection systems in Europe, Africa and the Americas
as well as human rights law in the Arab countries reveal the recent changes
in procedure together with substantive developments in the field of human
rights law. We will mainly examine the European system.85
4.1. Europe
4.1.1. Council of Europe (CoE)
The European system of human rights protection surfaced with the founding
of the CoE,86 the first European political Organization that was established
by ten Western-European states with the purpose of working for the “maintenance and further realization of human rights and fundamental freedoms”
(preamble). According to the Statute of the CoE (art. 3), states “must accept
the principles of the rule of law and of the enjoyment by all persons within its
82
83
84
85
Art. 43,1 of the Convention.
Both Protocols were adopted by G.A. A/RES/54/263, 2000.
Till this day the Committee has adopted 17 General Comments.
See among others M. N. Shaw, International Law Sixth Edition, Cambridge, 2008 p. 345 et
seq.
86
The Statute of the Council of Europe was signed in London on 5 May 1949 and entered in
force on 3 August 1949. The Organisation has 47 member states.
53
jurisdiction of human rights and fundamental freedoms,” in order to be accepted as members of the CoE and the must be exempted from the CoE when
they have violated their obligations87 (art.8 of the Statute).
4.1.1.1. European Convention on Human Rights (ECHR)
The most important accomplishment of the CoE is the adoption of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)88, which is completed by 16 Protocols. The “jewel in the crown”,
as the Convention is usually referred to, protects and guarantees mainly civil
and political rights as well as the right to education and property of the individuals who live in 47 member states.
Article 14 of the Convention explicitly deals with non-discrimination and
affirms that ‘’the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or other status’’.
The phrasing of Art. 14 makes quite clear that the right to non-discrimination
was not intended to be a separate one and has always been considered to have
a supporting role to the other rights within the ECHR, meaning that individuals did not have the capacity to allege a human rights violation based solely
on non discrimination grounds but were obliged to combine their application
with another right contained in the Convention.89
In 2005, the most essential of the Protocols was adopted, Protocol 12,
which emphasizes (art. 1,1) that the ‘’enjoyment of any right set forth by law
shall be secured without discrimination on any grounds…’’ Par. 2: ‘’No one
shall be discriminated against by any public authority on any grounds…’’90
The critical contribution of this Protocol is that after its adoption the right to
non-discrimination is considered to be an additional and self-sufficient right
87
See the famous ‘’Greek case’’ before the organs of the CoE, on violations of human rights
during the military junta of Greece 1967–1974 and the expulsion of Greece from the CoE.
88
Adopted in 1950, entered in force in 1953, ETS n. 1., See among others I. Cameron, An
introduction to the European Convention on Human Rights, 6th ed., Justus, Uppsala, 2011.
89
There is a rich case law concerning non-discrimination and it is worth mentioning that
the Court has broadened its scope of prohibition against discrimination contained in art. 14
with regard to its conjunction with the right to family and children’s rights. See Case of Kroon
and others v. The Netherlands (Application no. 18535/91), Case of Godelli v. Italy (Application
no. 33783/09), Case of Anayo v. Germany (Application no. 20578/07 ), Case of X v. Lativa (Application no. 27853/09), Case of Y.C. v. The United Kingdom (Application no. 4547/10) and
others. See among other P. Van Dijk, F. Van Hoof, A. Van Rijn and L. Zwaak (eds) Theory and
Practice of the European Convention on Human Rights, 4th Edition, Intersentia, Antwerpen,
2006.
90
The Protocol was signed in Rome on 4th November 2000 and entered into force 1st April
2005.
54
to the Convention that can be invoked as such in front of the Court (art. 3 of
the Protocol).
Concerning the administrative structure of the Court, the 11th Protocol of
1998 has been changed as follows:91 the permanent European Court of Human Rights (Court) has compulsory jurisdiction to deal with interstate and
individual applications. The individual has a locus standi92 to file cases directly before the Court, which is composed of 47 independent judges that
were elected by the Parliamentary Assembly from a list of three candidates
proposed by the member states. A Single judge has the competence to declare
an application inadmissible, committees of three judges examine the admissibility of the application, while Chambers of seven judges issues the decision
on the merits. The Grand Chamber, composed of seventeen judges, accepts
the request if the case raises serious questions concerning the interpretation
of application of the Convention or the Protocols, or a serious issue of general
importance. The plenary Court exercises mainly administrative functions.
The Committee of Ministers of the CoE supervises the execution of the judgment93, ensuring that the state takes all appropriate measures to implement
the decision of the Court. The Convention is not invoked in the Court alone,
but also in national courts in many countries. States parties try to bring their
municipal law and its application in conformity with the provisions of the
Convention, or amend national legislation if needed. The European system is
considered the most advanced effective enforcement mechanism in the protection of human rights in the world.
4.1.1.2. Other Conventions
Apart from the European Convention on Human Rights the legislative work
of the CoE has been vast. Some of the most important convention that were
adopted in the framework of this organizations arethe following: the European Social Charter (1961) and in the Revised European Social Charter (1996)
guarantees social and economic rights; the European Convention for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(1987); the European Charter for Regional or Minority Languages (1992) giving emphasis to the respect to the provisions of education in minority languages; the Framework Convention for the Protection of National Minorities
91
The European Commission on Human Rights was abolished.
Locus Standi means that the individual has the right to stand before the Court and defend
himself/herself, filing an application against his/her country alleging a breach of the Convention. This is the only regional human right Court where individuals have locus standi. In other
regional Courts the individuals appears before a Committee that decides whether the case can
be brought before the Court.
93
Art. 46,2 of the ECHR.
92
55
(1995); the European Convention on the exercise of Children’s rights94 (1996)
which involves the child in the decision-making process, with a standing
Committee to review its implementation; the Convention on Human Rights
and Biomedicine (1997) and its Protocols: Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being
with regard to the Application of Biology and Medicine, on the Prohibition
of Cloning Human Beings (1998); Additional Protocol to the Convention on
Human Rights and Biomedicine, on Transplantation of Organs and Tissues
of Human Origin (2002); Additional Protocol to the Convention on Human
Rights and Biomedicine, concerning Biomedical Research (2005); Additional
Protocol to the Convention on Human Rights and Biomedicine, concerning
Genetic Testing for Health Purposes (2008).
4.1.1.3. Other Institutions
On an institutional level and for a more effective protection of human rights,
the CoE has set up an independent institution: the Office of the Commissioner for Human Rights95 (1999). The Commissioner is mandated to promote
the awareness and respect of human rights in the member states. The CoE has
also established the European Commission against Racism and Intolerance
(ECRI), which is independent human rights monitoring body specialised in
combating racism, racial discrimination, xenophobia, anti-semitism and intolerance.
4.1.2. European Union
4.1.2.1. Lisbon Treaty
The Treaties that established the European Communities had no specific reference to human rights; hence policies adopted by its institutions and Heads
of States underlined principles such as democracy and respect of human
rights and fundamental freedoms.
References to human rights appear in the preamble of the Single European
Act (1987) and later on in the Maastricht Treaty (1992), and in the Treaty of
Amsterdam (1999).
It is noteworthy that since 1969 the Court of Justice of the European Communities played a very important role in protecting fundamental rights within the sphere of Community law.
The Court of the European Communities gradually developed a quite extensive case law referring to the respect of fundamental rights as the European Convention on Human Rights guarantees them (and as they derive from
94
P. Naskou-Perraki; P. Papapashalis, Child protection in the framework of the Council of
Europe, CIEEL, Working papers 2, Ant. N. Sakkoulas, Athens-Komotini, 2002, p. 45 et seq.
95
Res. (99) 50 on the CoE Commissioner for Human Rights, 7 May 1999.
56
the common constitutional traditions of member states) as general principles
of Community law.96
The Treaty on the EU, as amended by the Lisbon Treaty97 provides in art.
6 that “the EU is founded on the principles of liberty, democracy, respect of
human rights and fundamental freedoms and the rule of law, principles that
are common to all member states”. Furthermore ‘’the Union shall respect
fundamental rights, as guaranteed by the ECHR (…) and the constitutional
traditions of member states.’’ With the treaty of Lisbon, the EU undertakes
the responsibility to accede as a whole to European Convention on Human
Rights, a great step towards the harmonization and the unification of the two
legal orders.
4.1.2.2. The Charter of Fundamental Rights of the European Union
Furthermore, the Treaty of Lisbon incorporates the Charter of Fundamental
Rights98 (Charter) into European primary law ensuring better protection of
Europeans. The Charter applies to EU member states when they implement
EU law. It includes a long list of human rights divided in seven chapters and
influences the judgments of the Court and the policies of EU institutions. In
particular, it guarantees the freedoms and principles, especially the one of
non-discrimination99, set out in the above Charter while giving its provisions,
including civil, political, economic and social rights with a legally binding
status.100
4.1.2.3. EU Institutions
Among other EU Institutions, the Fundamental Rights Agency (FRA) was
established in 2007101 with the purpose of providing the Community institutions and the member states of the EU with assistance and expertise relating
to fundamental rights when implementing Community law.102 The FRA supports member states to take measures or decide on courses of action within
their respective spheres of competence to respect fundamental rights. Among
96
H.G. Schermers, D. F. Waelbroeck, Judicial Protection in the European Union, Kluwer
Law International, The Hague, London, New York, Sixth Edition, 2001.
97
The Treaty of Lisbon was signed in 2007 and entered into force in 1/12/2009 amending
without revising the EU and EC treaties and providing the EU with legal personality.
98
It was first drafted on 2000 and was later incorporated in the text of the Lisbon Treaty and
came in force 1 January 2009.
99
Art. 21 of the Charter of Fundamental Rights.
100
G. Di Federico (Ed.), The EU Charter of Fundamental Rights, From Declaration to Binding Instrument, Springer, Bologna, 2011, p.320.
101
Council Regulation 168/2007 of 15/02/2007, replacing the European Monitoring Center
on Racism and Xenophobia [EUMC].
102
European Union Agency for Fundamental Rights, Handbook on European non-discrimination law, Publications Office of the European Union, Luxembourg, 2011.
57
its main areas of work is discrimination based on different grounds and the
rights of the child including protection of children, most recently on children
and justice.
4.1.3. Organisation for the Security and Cooperation in Europe (OSCE)
The Organization for the Security and Cooperation in Europe (OSCE)103
has as priorities: to consolidate common values and build civil societies, to
prevent local conflicts, restore stability and bring peace to war-torn areas, to
overcome real and perceived security deficits and to avoid the creation of new
divisions by promoting a co-operative system of security. It has created three
organs to cope and deal with human rights issues, the Office for the Democratic Institutions and Human Rights (1991) in order to supervise free elections and democratic institutions, the High Commissioner on National Minorities (1992), and the Representative on Freedom of the Media (1997). The
OSCE provides training to national human rights institutions, NGOs, while
it focuses on gender equality, combating torture, trafficking in human being
and freedom of religion.104
5. Conclusion
The protection of human rights is an important matter for humanity. It should
be the states’ priority to sign, ratify and implement human rights treaties and
protect human rights as they are included in their constitutions and national laws. It is their duty to create National Human Rights Committees and
support NGOs working in the field of human rights. States have to create
ombudsmen, especially for children and other mechanisms at the national
level. If states fail to accomplish all the above, the international mechanisms
provide protection, a protection the states agreed upon after their ratification
of international treaties. The ratification of a treaty is interlinked with major
obligations from the part of the state, the first being the revision of national
and domestic law in accordance with the one that emanates from the text of
the Convention. Principally, states have to incorporate the course of human
rights protection in the educational program at all levels of education. It is a
commonplace that only through education and information we can respect
human rights and the principle of non-discrimination.
Human Rights need mechanisms of implementation; without control, the
human rights’ implementation would be like democracy without free elec103
(OSCE). Based on the Paris Charter, which was signed in Paris on 19–21 November 1990
and entered into force on 21 November 1990, ILM 1991. It is composed of 55 member states.
104
D.J. Galbreath, The Organization for the Security and Co-operation in Europe, Routledge,
London and New York 2007, p. 92–116.
58
tions: an empty promise. The need for an International Court for Human
Rights seems now more pressing than ever. The quasi-judicial mechanisms
that the different treaties have established have a specific spectrum when it
comes to their judgements which excludes and prohibits, in terms of admissibility, the invocation of other legal basis concerning a certain infringement
of human rights.105
The UN Charter places the respect for human rights on the same level as
the maintenance of international peace and security, while prioritizing both
as indispensable standards for the welfare of the international community.
There is need to understand that conflicts are an evolving scheme, which
is constantly reshaping. In this manner it is possible to speak of international
law as no longer being limited to the regulation of relations between sovereign
states, but also extending to the treatment of individuals within states. Individuals are now put on the map, while the international legal order’s vision,
which has been compromised and myopic to entities, apart from states, has
now dramatically improved. Taking into consideration that this conservative
abbreviated conception of international law as dealing only with states does
not comply with the ongoing circumstances of the 21st century, we understand that humanity needs a permanent international institution with legal
personality, empowered and delegated to decide in a final and legally binding
manner on all alleged human rights violations based on complaints brought
before it. The paradigm of the CoE with the evolution of a permanent Court
within the structure of the Organization has exerted a strong influence over
the proliferation and dissemination of human rights not only in Europe but
also in other regions106, while at the same time providing a good practise and
therefore a precedent for the institution of a global initiative.107
105
M.C. Bassiouni and W. A. Shabas (eds.), New Challenges for the UN Human Rights Machinery, What Future for the UN Treaty Body System and the Human Rights Council Procedures?, Intersentia, Cambridge-Antwerp-Portland, 2011, p. 17–32.
106
The American Convention of Human Rights, the African Charter on Human and Peoples’
Rights and the Arab Charter on Human Rights are regional instruments that aspired to create a regime similar to the one instituted by the CoE. See among others: P. Naskou-Perraki,
“The African Court on Human Rights and People’s Rights”, Revue Hellenique de Droit International, 2003, p. 205–222, P. Naskou-Perraki, “The Arab Charter on Human Rights: A new
start for the protection of human rights in the Arab World”, in Revue Hellenique de Droit
International, 2009, p.117–136.
107
Rh. K. M. Smith, Texts and Materials on International Human Rights, Third Edition,
Routledge, London and New York, 2013, p. 389–435.
59
Questions for reflection
•
•
•
•
•
•
•
Which are the main International treaties protecting the principle of non-discrimination?
Explain whether the Universal Declaration is legally binding upon states.
Which system of human rights protection is the most effective and why?
Propose changes at Universal level for more effective protection of human rights.
How does the Human Rights Council work?
Identify international human rights obligations under the United Nations Charter.
European state X, having signed and ratified the ICCPR and the ECHR, is discriminating against Y, an Afghan child. Y’s parents come to you for advice and ask which is
the most effective mechanism for the protection of Y’s rights and why?
Further readings
Bassiouni, M.C. and Shabas, W.A. (eds.), New Challenges for the UN Human Rights Machinery, What Future for the UN Treaty Body System and the Human Rights Council
Procedures?, Intersentia, (Cambridge-Antwerp-Portland, 2011) 480.
Buergenthal, T., Shelton, D., Stewart, D. International Human Rights in a nutshell (5th
Edition, West Group, United States of America, 2009) 450.
European Union Agency for Fundamental Rights, Handbook on European non-discrimination law, (Publications Office of the European Union, Luxembourg, 2011) 156.
Human Rights: International Protection, Monitoring, Enforcement, J. Symonides (eds.),
(UNESCO Publishing, 2003) 421.
Naskou-Perraki, P. International Mechanisms protecting Human Rights, (Ant. N. Sakkoulas – Bruylant, Athens, Brussels, 2010) 654.
Non-discrimination in International Law: A Handbook for practitioners, (Interights,
International Centre for the Legal Protection of Human Rights, London, 2011) 261.
Smith, Rh.K.M. Textbook on International Human Rights, (5th Edition, Oxford 2012)
744.
Steiner, H.J., Alston, P., Goodman, R. International Human Rights in Context: Law, Politics, Morals (3rd Edition, Oxford University Press, USA, 2007) 744.
Skouteris, Th., Vagias, M. (eds.), International Organizations and the Protection of Human Rights, Essays in Honor of Professor P. Naskou-Perraki, (Themis Publishers, Nik.
A. Sakkoulas, Athens) 2014, 250.
60
Agnes Lux
CHAPTER 2:
NON-DISCRIMINATION, COMPLAINTS
MECHANISMS AND EQUALITY BODIES
Agnes Lux
Agnes Lux’s degree is in political science and law. She worked
for the Office of the Commissioner for Fundamental Rights in
Hungary (2008–2014), she is currently the child rights advocavy
director at UNICEF Hungary. She is also lecturer at the ELTE
University Faculty of Law, Budapest – her Phd thesis is about
institutions defending children’s rights.
[email protected]
1. European framework on non-discrimination
The right to non-discrimination is recognized inter alia by the main international instruments such as the Universal Declaration of Human Rights, the
UN Covenant on Civil and Political Rights, the UN Convention on Economic, Social and Cultural Rights, the UN Convention on the elimination of racial
discrimination, and ILO Convention No 111. The provisions on non-discrimination contained in the European Convention on Human Rights and Fundamental Freedoms were reinforced by the entry into force on 1 April 2005 of a
new Protocol 12 to that Convention which provides for a free-standing right
to equal treatment.
Today, the European Union actively fights against all forms of discrimination and for universal respect for human rights, promoting firstly the spirit of
the European Convention of Human Rights (hereinafter: ECHR)1 and, since
2009, fulfilling its duty based on the legally binding Charter of Fundamental
Rights of the EU2.
1
European Court of Human Rights (2002). European Convention on Human Rights. Resource Document. http://www.echr.coe.int/Documents/Convention_ENG.pdf. Accessed 20
March 2014.
2
Official Journal of the European Union (2010). Charter of Fundamental Rights of the
European Union. Resource Document. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?
uri=OJ:C:2010:083:0389:0403:en:PDF. Accessed 20 March 2014.
CHAPTER 2: Non-discrimination, complaints mechanisms and equality bodies
61
The ECHR is a legally binding international agreement adopted (so far) by
47 European States, including all 28 EU Member States. Adopted in 1950 and
entering into force in 1953, it is the first of the Council of Europe’s3 conventions and the cornerstone of all its activities. The State Parties have an obligation to ensure it is fully applied and respected on their territories. If they do
not fulfill this obligation, they can face charges for violation of the ECHR before the European Court of Human Rights (hereinafter: Court)4 in Strasbourg.
Article 14 of the ECHR provides “the enjoyment of the rights and freedoms
set forth in this Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth
or other status.”
In many cases, other specific provisions of the ECHR can have an influence on equality and non-discrimination legislation in the Member States;
this can be both direct or indirect influence, the latter being possible through
the prohibition of discrimination in Article 14.
The ECHR’s scope for enforcing and protecting the rights of children is not
immediately evident given that it contains few specific references to the rights
of the child. While it is not apparent that the Court has followed a consistent
strategy to refer to the UN Convention on the Rights of the Child (hereinafter: UN CRC)5 in all children’s cases, it has been making such references with
increasing frequency and with significant effect.6
The Court delivers judgements against Member States of the Council of
Europe on alleged violations of the European human rights treaties. Complaints may be lodged by individuals or by other Member States.
Failure by States to abide by judgements can lead to their expulsion from
the Council of Europe, and the Court’s decisions are binding on all Council of
Europe members. The Court deals with cases in which an individual has not
3
The Council of Europe is Europe’s leading human rights organisation since 1949. It includes
47 member states, among which figure 28 member states of the European Union. All Council
of Europe member states have signed up to the ECHR. Its headquarter is in Strasbourg.
4
The European Court of Human Rights is an international court set up in 1959. It rules
on individual or State applications alleging violations of the civil and political rights set out
in the European Convention on Human Rights. Since 1998, it has sat as a full-time court;
individuals can apply to it directly (European Court of Human Rights. The Court in brief. Resource Document. http://www.echr.coe.int/Documents/Court_in_brief_ENG.pdf. Accessed
20 March 2014).
5
United Nations Human Rights, Office of the High Commissioner for Human Rights.
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; entry into force 2
September 1990, in accordance with article 49. http://www.ohchr.org/en/professionalinterest/
pages/crc.aspx. Accessed 20 March 2014.
6
Kilkelly, U. (2001). Best of Both Worlds for Children’s Rights. Human Rights Quarterly 23,
308–326.
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received adequate redress for violations in the courts in his or her country,
or has been unable to access the national justice system. The Committee of
Ministers, which is the decision-making body of the Council of Europe and
is composed of its Member States’ Foreign Ministers, is responsible for supervising enforcement of the Courts’ judgements. The Court also has an advisory function which allows it to issue ‘Advisory Opinions’. Advisory Opinions,
which can be requested by the Council of Europe’s Committee of Ministers,
go into more detail about a particular Article or aspect of a Convention to
help interpret its meaning.
2. Children’s rights and the European Court of Human Rights
The ECHR, the main and most important regional human rights treaty in
Europe, makes no specific mention of children’s rights. However, the rights
contained in the ECHR apply to children, and indeed, complaints have been
brought to the Court alleging breaches of these rights in the case of children
(see below).
Minors or juveniles (the text is inconsistent in its use of relevant terminology) appear only in Article 5 concerning the right to liberty, and Article
6 related to the right to fair trial. Consequently, the ECHR lacks substantive
rights for children. However, many features allow for references to UN CRC
because many of the ECHR’s provisions are phrased in broad terms and can
thus be interpreted expansively. Quite clearly, the ECHR in the XXI. century
cannot be seen isolated from surrounding legal and social conditions.7
In addition, the Council of Europe has adopted a number of treaties – specifically to protect children’s rights –, which may be invoked at the Court to
challenge breaches of these rights:
• Convention on the Protection of Children against Sexual Exploitation
and Sexual Abuse (2010)8;
• European Convention on the Exercise of Children’s Rights (1996)9;
• European Convention on the Legal Status of Children born out of Wedlock (1975)10;
7
See also Kilkelly 2001: 313.
Council of Europe Treaty Office (2010). Convention on the Protection of Children
against Sexual Exploitation and Sexual Abuse. http://conventions.coe.int/Treaty/Commun/
QueVoulezVous.asp?NT=201&CM=8&DF=&CL=ENG. Accessed 20 March 2014.
9
Child Rights International Network (CRIN) (1996). European Convention on the Exercise of Children’s Rights. Resource Document. http://www.crin.org/en/library/legal-database/
european-convention-exercise-childrens-rights. Accessed 20 March 2014.
10
CRIN (1975). European Convention on the Legal Status of Children Born out of Wedlock.
http://www.crin.org/en/library/legal-database/european-convention-legal-status-childrenborn-out-wedlock. Accessed 20 March 2014.
8
63
• European Convention on the Adoption of Children (1967)11;
• European Convention on Recognition and Enforcement of Decisions
concerning Custody of Children and on Restoration of Custody of
Children (1980)12;
• European Convention on the Repatriation of Minors (1970)13.
In the last decades, the Court has also recognized the importance of UN CRC
in its jurisprudence, stating first in the Sahin v. Germany case (2003) that “[t]
he human rights of children and the standards to which all States must aspire in
realizing these rights for all children are set out in the United Nations Convention on the Rights of the Child.” 14
2.1. Brief overview on Court cases related children and Art 14.15
The first child rights case was brought before the Court in 1978. It concerned the
judicial corporal punishment of a UK citizen, Mr. Anthony Tyrer, who was 15
at the time of the sentence in 1972. He had pleaded guilty at a local juvenile
court in the Isle of Man to unlawful assault occasioning actual bodily harm
to a pupil at his school. The court had sentenced him to three strokes of the
birch. The applicant claimed that his judicial corporal punishment constituted a breach of Article 3 of the ECHR, which prohibits torture, degrading and
inhumane treatment or punishment. He also claimed that the punishment
was destructive to family well-being and therefore contravened Article 8, that
no remedies existed to rectify the violation as required by Article 13, and that
the punishment was discriminatory based on Article 14, because it was primarily applied to persons from financially and socially deprived homes.
The many other child rights breaches which have since been litigated at
the Court include the ill-treatment of children in police custody; the right to
legal assistance for children in conflict with the law; the detention and deportation of young children, children’s voice in child protection and placement
11
CRIN (1967). European Convention on the Adoption of Children. http://www.crin.org/
en/library/legal-database/european-convention-adoption-children. Accessed 20 March 2014.
12
CRIN (1980). European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children. http://www.crin.org/
en/library/legal-database/european-convention-recognition-and-enforcement-decisionsconcerning-custody. Accessed 20 March 2014.
13
Council of Europe (1970). European Convention on the Repatriation of Minors. http://
conventions.coe.int/Treaty/en/Treaties/Html/071.htm. Accessed 20 March 2014.
14
Further decisions of the Court citing the UN CRC: CRIN (2012). CRC in Court: The Case
Law of the Convention on the Rights of the Child. http://www.crin.org/docs/CRC_in_Court_
Report.pdf. Accessed 20 March 2014.
15
Search at the Council of Europe’s THESEUS case law database related to children, http://
www.coe.int/t/dg3/children/caselaw/caselawchild_en.asp. Accessed 20 March 2014.
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decisions; international adoption; and corporal punishment at home and at
school and various cases of discrimination.
In the Belgian Linguistic case16 (1968), the applicants – parents of more
than 800 Francophone children, living in certain (mostly Dutch-speaking)
parts of Belgium – complained that their children were denied access to education in French. The Court found that denying certain children access to the
French-language schools with a special status in the six communes on the
outskirts of Brussels just because their parents lived outside those communes
represented a violation of Article 14.
In the Marckx v. Belgium17 (1979) case, an unmarried Belgian mother
complained that she and her daughter Alexandra were denied rights accorded
to married mothers and their children: among other things, she had to recognize her child (or bring legal proceedings) to establish affiliation (married
mothers could rely on the birth certificate); recognition restricted her ability
to bequeath property to her child and did not create a legal bond between the
child and mother’s family, her grandmother and aunt. Only by marrying and
then adopting Alexandra (or going through a legitimation process) would she
have ensured that her daughter had the same rights as a legitimate child. The
Court found violations of Article 8 and 14 regarding both applicants, concerning the establishment of Alexandra’s maternal affiliation, the lack of a legal bond with her mother’s family and her inheritance rights and her mother’s
freedom to choose how to dispose of her property.
In the Inze v. Austria18 (1987) case, the applicant was not legally entitled to
inherit his mother’s farm when she died intestate because he was born out of
wedlock. Although he had worked on the farm until he was 23, his younger
half-brother inherited the entire farm. The applicant ultimately received a
small section of land from his brother that his mother had wanted to leave to
him. The Court – noting that the applicant had only accepted the settlement
because he had had no hope of obtaining more – found that there had been a
violation of Article 14.
In the Mazurek v. France19 (2000) case, the applicant – born of an adulterous relationship – had his entitlement to inherit reduced by half because a
legitimated child also had a claim to their mother’s estate, according to the law
in force at that time (1990). The Court noted a clear trend in Europe towards
the abolition of discrimination in relation to children in the applicant’s situation. Such a child could not be reproached for events outside her/his control.
16
17
18
19
nos. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64.
no. 6833/74
no. 8695/79
no. 34406/97, see also Merger and Cros v. France (app. no. 68864/01)
65
There had therefore been a violation of Article 1 of Protocol No. 1 in conjunction with Article 14.
In the Camp and Bourimi v. the Netherlands20 (2000) case, Eveline Camp
and her baby son Sofian had to move out of their family home when Sofian’s
father Abbi Bourimi died intestate before recognizing Sofian and marrying
Ms Camp (as had been his stated intention). Under Dutch law at the time,
Mr Bourimi’s parents and siblings inherited his estate. They then moved into
his house. Sofian was later declared legitimate, but as the decision was not
retroactive, he was not made his father’s heir. Noting that Mr Bourimi had
intended to marry Ms Camp and recognize Sofian, the Court found Sofian’s
exclusion from his father’s inheritance to be disproportionate, in violation of
Articles 8 and 14.
The H.G. and G.B. v. Austria21 (2005) case was about differences in the
minimum age for lawful homosexual and heterosexual relations in Austria.
It questioned the punishment of consensual homosexual acts between adult
men and adolescents aged between 14 and 18, while heterosexual and lesbian
relations between adults and adolescents in the same age group were not punishable. Article 8 and Article 14 were violated.
The D.H. v. Czech Republic22 (2007) case concerned 18 Roma children
of Czech nationality, who were placed in schools for children with special
needs – including those with a mental or social handicap – from 1996 to 1999.
The applicants claimed that a two-tier educational system was in place in
which the segregation of Roma children into such schools – which followed a
simplified curriculum – was quasi-automatic. The Court noted that, at the relevant time, the majority of children in special schools in the Czech Republic
were of Roma origin. Roma children of average/above average intellect were
often placed in those schools on the basis of psychological tests that were not
adapted to people of their ethnic origin. The Court concluded that the law at
that time had a disproportionately prejudicial effect on Roma children, being
yet another violation of Article 14.
In the Sampanis and Others v. Greece23 (2008) case, the Greek authorities
failed to enroll in school a group of Greek children of Roma origin – who were
receiving no formal education – for an entire academic year. Over 50 children
were subsequently placed in special classes in a school annex supposed to
prepare the pupils concerned for reintegration into mainstream classes. The
20
no. 28369/95
Also see the cases of Sutherland v. the United Kingdom, 27 March 2001; L. and V. v. Austria, 9 January 2003; S. L. v. Austria, 9 January 2003; B.B. v. the United Kingdom, 10 February
2004; Woditschka and Wilfling v. Austria, 21 October 2004; Ladner v. Austria, 3 February
2005; and Wolfmeyer v. Austria, 26 May 2005.
22
no. 57325/00
23
no. 32526/05, see also: Sampani and Others v. Greece (app. no. 59608/09)
21
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Court noted that the Roma children were not suitably tested – neither initially, to see if they would need to go into the preparatory classes, nor later,
to see if they had progressed sufficiently to join the main school. It found a
violation of Article 2 of Protocol No. 1 (right to education) and Article 14,
concerning both the enrolment procedure and the placement of the children
in special classes.
In the Brauer v. Germany24 (2009) case, the applicant was unable to inherit
from her father who had recognized her under a law affecting children born
outside marriage before 1 July 1949. The equal inheritance rights available
under the law of the former German Democratic Republic (where she had
lived for much of her life) did not apply because her father had lived in the
Federal Republic of Germany when Germany was unified. The Court found
violations of Articles 8 and 14.
In the Oršuš and Others v. Croatia25 (2010) case, fifteen Croatians of Roma
origin complained that they were victims of racial discrimination in that they
were segregated into Roma-only classes and consequently suffered educational, psychological and emotional damage. The Court observed that only Roma
children had been placed in the special classes in the schools concerned. The
Government attributed the separation to the pupils’ lack of proficiency in Croatian. However, the tests determining their placement in such classes did not
focus specifically on language skills, the educational programme subsequently
followed did not target language problems, and the children’s progress was not
clearly monitored. The placement of the applicants in Roma-only classes was
therefore unjustified, in violation of Article 2 of Protocol No. 1 and Article 14.
The Genovese v. Malta26 (2011) case concerned the refusal to grant Maltese
citizenship to the British applicant – born in Scotland (United Kingdom) out
of wedlock to a British mother and a Maltese father – on the ground that he
was an illegitimate child. A child born in wedlock or to a Maltese mother
would have been entitled to Maltese citizenship. Violation of Article 14 was
found.
The Horváth and Kiss v. Hungary27 (2013) case concerned the complaints
of two young Roma men denouncing that their education in schools for the
mentally disabled had been the result of a misplacement that amounted to
discrimination. Violation of Article 2 of Protocol No. 1 was read in conjunction with Article 14. The Court underlined that there was a long history of
misplacement of Roma children in special schools in Hungary. It found that
the applicants’ schooling arrangement indicated that the authorities had failed
24
25
26
27
no. 3545/04
no. 15766/03
no. 53124/09
no. 11146/11
67
to take into account their special needs as members of a disadvantaged group.
As a result, the applicants had been isolated and had received an education,
which made their social integration all the more difficult.
The Lavida and Others v. Greece28 (2013) case concerned the education of
Roma children who were restricted to attending a primary school in which
the only pupils were other Roma children. Violation of Article 14 in conjunction with Article 2 of Protocol No. 1 was found.
The X and Others v. Austria29 (2013) case was about the adoption of a boy
by his mother’s same-sex partner in Austria. The court found discrimination
against the applicants – a lesbian couple and the child of one of them, born
out of wedlock and recognized by his father, and whose mother had sole custody of him – especially when compared to unmarried different-sex couples,
as it was legally impossible for the mother’s partner to adopt her child. Violation of Article 8 and Article 14 was found.
3. EU legislation on children’s rights and non-discrimination
The Lisbon Treaty entered into force in December 2009, as immanent part
of it the Charter of Fundamental Rights of the EU has received legally binding character. The Charter assembles in a single document the fundamental
rights and freedoms protected in the EU, regrouped in six chapters: dignity;
freedoms; equality; solidarity; citizens’ rights and justice. It is addressed to the
institutions and bodies of the EU and the national authorities of EU Member
States when they are implementing EU legislation. Title III on equality contains general provisions of equality before the law and prohibition of any form
of discrimination as well as more specific provisions concerning the rights of
the child and of the elderly, integration of persons with disabilities, equality
between women and men, and linguistic diversity.
Article 21 of the Charter also states that:
“any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property,
birth, disability, age or sexual orientation shall be prohibited.”
28
no. 7973/10
See Fretté v. France, 26 February 2002; Emonet and Others v. Switzerland, 13 December
2007; E.B. v. France [GC], 22 January 2008; Zaunegger v. Germany, 3 December 2009; Sporer
v. Austria, 3 February 2011; Gas and Dubois v. France, 15 March 2012.
29
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Article 24 is about “the rights of the child”, it explicitly says:
“1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views
shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children,
whether taken by public authorities or private institutions, the child’s best
interests must be a primary consideration. 3. Every child shall have the
right to maintain on a regular basis a personal relationship and direct
contact with both his or her parents, unless that is contrary to his or her
interests.”
In the last few years, the EU has put in place a considerable body of legislation to tackle sex discrimination related to pay, working conditions and social security. But it also needs to tackle discrimination based on a number of
other grounds. That is why the 1997 Amsterdam Treaty included Article 13,
which empowers the Community to take action to deal with discrimination
based on a whole new range of grounds, including racial or ethnic origin,
religion or belief, age, disability, and sexual orientation. This Article was subsequently modified by the Nice Treaty to allow for the adoption of incentive
measures by qualified majority voting in the Council of the EU. To ensure that
everyone living in the EU can benefit from effective legal protection against
discrimination, the Council adopted two directives in 2000: the Racial Equality Directive30 and the Employment Equality Directive31. These directives represented significant progress in ensuring protection against discrimination
in the European Union. They have required significant changes to national
law in all Member States, even those that already had comprehensive antidiscrimination legislation.
On an European level, there are two different legislative frameworks regarding equality and non-discrimination law: (1) that of the EU (non-discrimination
directives) and (2) that of the Council of Europe (ECHR). The EU legislation is
legally binding in all EU Member States, who have the obligation not only to
respect and apply the EU laws themselves, but to implement them to ensure
that their citizens respect and apply them as well.
30
Official Journal of the European Communities: Council directive 2000/43/EC of 29 June
2000 implementing the principle of equal treatment between persons irrespective of racial or
ethnic origin. Resource Document. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=
OJ:L:2000:180:0022:0026:EN:PDF. Accessed 20 March 2014.
31
Official Journal of the European Communities: Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Resource Document. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2
000:303:0016:0022:EN:PDF. Accessed 20 March 2014.
69
4. Right defending institutions: equality bodies, ombudsmen
Equality bodies are independent organizations assisting victims of discrimination, monitoring and reporting on discrimination issues, and promoting equality. They are legally required to promote equality and combat discrimination
in relation to one, some, or all of the grounds of discrimination covered by
EU law – gender, race and ethnicity, age, sexual orientation, religion or belief
and disability.
The EU equal treatment legislation requires Member States to set up an
equality body. However, there are no specific guidelines to Member States on
how these bodies should operate. Today, more than ten years after the implementation date of the Racial Equality Directive and the Gender Equal Treatment Directives, a wide variety of practices concerning equality bodies are
flourishing in the EU Member States. So far, European anti-discrimination
law only requires that equality bodies be set up in the fields of race and ethnic
origin and gender. However, many countries have bodies that deal with other
grounds of discrimination as well.
Equality bodies are required to provide independent assistance to victims of
discrimination. This assistance can involve a range of activities including:
• providing information about the existence of anti-discrimination laws
and about the possibility of taking legal action to seek remedy or compensation after suffering an act of discrimination;
• directing people who experience discrimination to an organization/institution that could help them;
• helping people who experience discrimination to come to an amicable
settlement/mutual agreement (mediation) with the discriminators; and
• giving legal advice and representation to people who have been discriminated.
Equality bodies can also:
• conduct independent surveys on discrimination;
• publish independent reports and make recommendations on any issue
relating to discrimination.
Most equality bodies also promote equal treatment through information
campaigns aimed at the general public and by providing support to employers and service providers on good equality practice.
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The European Network of Equality Bodies (Equinet)32 brings together 38
organizations from 31 European countries, which are empowered to counteract discrimination as national equality bodies across the range of grounds
including age, disability, gender, race or ethnic origin, religion or belief, and
sexual orientation.
4.1. Ombudsman
In many countries around the world an ombudsman33 deals with complaints
from the public regarding decisions, actions or omissions of public administration. Although the specific role may vary, the holder of this office is usually
elected by the parliament or appointed by the head of state or government
with the help of or after consultation with the parliament. The role of the
ombudsman is to protect the people against violation of fundamental rights,
abuse of powers, error, negligence, unfair decisions and maladministration
and to improve public administration while making the government’s actions
more open and its administration more accountable to the public.
Whether appointed by the legislature, the executive, or an organization,
the typical duties of an ombudsman are to investigate complaints and attempt
to resolve them, usually through recommendations (legally binding or not)
or mediation. At the national level, most ombudsmen have a wide mandate to
deal with the entire public sector, and sometimes also elements of the private
sector (e.g. contracted service providers). In some cases, there is a more restricted mandate, for example with particular sectors of society.34 More recent
developments have included the creation of specialized Children’s Ombudsmen35.
32
Equinet is built upon a two year project “Strengthening the co-operation between specialized bodies for the implementation of equal treatment legislation” (2002–2004) and is currently funded by PROGRESS, the European Community Programme for Employment and
Social Solidarity (2007–2013). http://www.equineteurope.org/-Member-organisations-. Accessed 20 March 2014.
33
An indigenous Swedish, Danish and Norwegian term, Ombudsman is etymologically rooted in the Old Norse word “umboðsmaðr”, essentially meaning “representative” (with the word
umbud/ombud meaning proxy, attorney, that is someone who is authorized to act for someone
else, a meaning it still has in the Scandinavian languages). The first preserved use is in Sweden.
In the Danish Law of Jutland from 1241, the term is umbozman and means a royal civil servant
in a hundred. The modern use of the term began in Sweden, with the Swedish Parliamentary
Ombudsman instituted by the Instrument of Government of 1809, to safeguard the rights of
citizens by establishing a supervisory agency independent of the executive branch.
34
See more: Kucsko-Stadlmayer, Gabriele (Ed.) (2008). European Ombusman-Institutions:
A comparative legal analysis regarding the multifaceted realisation of an idea. Wien, New
York: Springer.
35
See more: Brian Gran: The Roles of Independent Children’s Rights. Williams, Jane and
Invernizzi, Antonella (Eds.) (2011): The Human Rights of Children. From Visions to Implementation. Surrey, UK Ashgate Publishing Group. pp 219–237.
71
4.2. National Human Rights Institutions/Children’s rights ombudsmen
National Human Rights Institutions (NHRIs)36 for children are public entities
founded in legislation, financed by the state and charged with responsibility
to report to legislature and/or the government.
These institutions are based on the “Paris principles”37 adopted by the UN
General Assembly in December 1993, 48/134. The Principles affirm that national institutions are to be vested with the competence to promote and protect human rights and that they are to be given as broad a mandate as possible,
“clearly set forth in a constitutional or legislative text”.
Among proposed responsibilities are:
• to submit recommendations, proposals and reports on any matter relating to human rights (including legislative and administrative provisions and any situation of violation of human rights) to the Government, parliament and any other competent body;
• to promote conformity of national laws and practices with international human rights standards;
• to encourage ratification and implementation of international standards;
• to contribute to the reporting procedure under international instruments;
• to assist in formulating and executing human rights teaching and research programmes and to increase public awareness of human rights
through information and education;
• to co-operate with the United Nations, regional institutions and national institutions in other countries.
All of these functions can be re-focused to relate specifically to the promotion
and protection of the human rights of children.
As with many positive developments for children, the idea of a children’s
ombudsperson was first developed by non-governmental organizations
(NGOs). Radda Barnen, Save the Children Sweden, established an Ombudsman for Children in the 1970s and promoted the idea internationally during
the International Year of the Child (1979).
The Norwegian government was the first to use legislation to set up an independent body for children. An Act establishing the Barneombud was passed
by the Norwegian Parliament in 1981. In 1975, the Ministry of Justice had
36
See more: Haász, Veronika (2013). The Role of National Human Rights Institutions in the
Implementation of the UN Guiding Principles. Human Rights Review, Volume 14, Issue 3, pp
165–187.
37
Full text: http://www2.ohchr.org/english/law/parisprinciples.htm. Accessed 20 March 2014.
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established a committee to look at legislation on parents and children and to
consider whether there was a need for a public body solely for children. The
unanimous proposal of the Committee in its 1977 report was that a public,
national office of Ombudsman for Children should be established. The proposal was examined by an inter-departmental committee representing the six
departments with major responsibilities for children. The Act establishing the
office as an autonomous body is short; the statutory duty of the Barneombud
is to “promote the interests of children vis-à-vis public and private authorities”.
In 1998, the Act was amended to link the Ombudsman’s functions to implementation of the UN CRC.
Since the birth of Norway’s pioneering institution, many other countries in
Europe and beyond have accepted the need to establish independent statutory
institutions to monitor, promote and protect the human rights of children.
Since the adoption of the UN CRC in 1989, the development of these offices
for children is most usefully considered as part of the process of implementing the UN CRC and alongside or in the context of the development of independent national human rights institutions.
Article 4 of the UN CRC obliges States parties to “undertake all appropriate legislative, administrative and other measures for the implementation of
the rights recognized in the present Convention”. Independent national human rights institutions (NHRIs) are an important mechanism to promote
and ensure the implementation of the Convention, and the Committee on the
Rights of the Child considers the establishment of such bodies to fall within
the commitment made by States parties upon ratification to ensure the implementation of the Convention and advance the universal realization of children’s rights. In this regard, the Committee has welcomed the establishment
of NHRIs and children’s ombudspersons/ children’s commissioners and similar independent bodies for the promotion and monitoring of the implementation of the Convention in a number of States parties.38
Some have done so by creating a new, separate institution with a variety of
names: Commissioners or Commissions for Children or for children’s rights,
National Council for Children’s Rights, Defenders of Children, Child Advocates, Child Rights Delegates. Others have developed a specific focus within
national or general human rights institutions. In some States, these institutions are national or federal; in others, they are regional or local.
Independent institutions for children’s rights have multiplied in all regions
and now exist in more than 80 countries.39
38
UN CRC Committee General Comment No. 2 (2002): The role of independent national
human rights institutions in the promotion and protection of the rights of the child.
39
Vuckovic Sahovic, N.; Doek, J.E.; Zermatten, J. (Eds.) (2012). The Rights of the Child in
International Law. Bern: Stämpfli Publishers.
73
The European Network of Ombudspersons for Children (hereinafter:
ENOC) is a not-for-profit association of independent children’s rights institutions. Its mandate is to facilitate the promotion and protection of the rights
of children, as formulated in the UN Convention on the Rights of the Child.
ENOC was established at a meeting in Trondheim (Norway) in 1997, when an
initial group of 10 institutions met with UNICEF. UNICEF’s office for Western Europe in Geneva agreed to provide a Secretariat for ENOC for the first
10 years, later the Secretariat has moved to Strasbourg. ENOC holds an annual meeting each year.
By 2012, it had grown to include 40 institutions in 31 countries within
the Council of Europe, 20 of which EU countries. Membership is limited to
institutions in the 47 member states of the Council of Europe and they have
to be in harmony with the Paris Principles. ENOC adopted Standards for Independent Children’s Rights Institutions. It wants to establish links and share
information and strategies with independent children’s rights institutions –
children’s ombudspersons, commissioners for children, or focal points on
children’s rights in national human rights institutions or general ombudsman
offices. Together with CRIN – Children’s Rights Information Network – it is
establishing a virtual global network.
5. International level of right to remedy – UN CRC Committee
There are three main procedures for bringing complaints about violations of
the provisions of the human rights treaties before the UN human rights treaty
bodies:
• individual communications;
• state-to-state complaints; and
• inquiries.
There are also procedures for complaints that fall outside of the “treaty body
system”, namely through the Special Procedures of the Human Rights Council
and the Human Rights Council Complaint Procedure.
There are nine core international human rights treaties. Each of these treaties has established a “treaty body” (Committee) of experts to monitor implementation of the treaty provisions by its States parties.40 Treaty bodies (CCPR,
40
The nine human rights treaty bodies that monitor implementation of the core international human rights treaties: Human Rights Committee (CCPR), Committee on Economic,
Social and Cultural Rights (CESCR), Committee on the Elimination of Racial Discrimination
(CERD), Committee on the Elimination of Discrimination against Women (CEDAW), Committee against Torture (CAT), Subcommittee on Prevention of Torture (SPT), Committee
on Migrant Workers (CMW), Committee on the Rights of Persons with Disabilities (CRPD,
Committee on Enforced Disappearances (CED).
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CERD, CAT, CEDAW, CRPD, CED, CMW, CESCR and CRC) may, under certain conditions, consider individual complaints or communications from individuals. Not all treaty body based complaint mechanisms have entered into
force. Currently, seven of the human rights treaty bodies (CCPR, CERD, CAT,
CEDAW, CRPD, CED and CESCR) may, under certain conditions, receive
and consider individual complaints or communications from individuals:
The Human Rights Committee (CCPR) may consider individual communications alleging violations of the rights set forth in the International Covenant on Civil and Political Rights by States parties to the
First Optional Protocol to the International Covenant on Civil and Political Rights;
The Committee on Elimination of Discrimination against Women
(CEDAW) may consider individual communications alleging violations
of the Convention on the Elimination of All Forms of Discrimination
against Women by States parties to the Optional Protocol to the Convention on the Elimination of Discrimination against Women;
The Committee against Torture (CAT) may consider individual complaints alleging violations of the rights set out in the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by States parties who have made the necessary declaration under
article 22 of the Convention;
The Committee on the Elimination of Racial Discrimination (CERD) may
consider individual petitions alleging violations of the International
Convention on the Elimination of All Forms of Racial Discrimination
by States parties who have made the necessary declaration under article
14 of the Convention;
The Committee on the Rights of Persons with Disabilities (CRPD) may
consider individual communications alleging violations of the Convention on the Rights of Persons with Disabilities by States parties to the
Optional Protocol to the Convention;
The Committee on Enforced Disappearances (CED) may consider individual communications alleging violations of the International Convention for the Protection of All Persons from Enforced Disappearance
by States parties, who have made the necessary declaration under article 31 of the Convention;
The Committee on Economic, Social and Cultural Rights (CESCR) may
consider individual communications alleging violations of the International Covenant on Economic, Social and Cultural Rights by States
parties to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.
75
For two other treaty bodies (the Committee on Migrant Workers (CMW),
and the Committee on the Rights of the Child (CRC)) the individual complaint mechanisms have not yet entered into force.
The Committee on the Rights of the Child (hereinafter: Committee)41 is the
body of independent experts that monitors implementation of the UN CRC
by its State parties. It also monitors implementation of two optional protocols
to the Convention, on involvement of children in armed conflict42 and on
sale of children, child prostitution and child pornography.43 On 19 December
2011, the UN General Assembly approved the Third Optional Protocol44 on a
Communications Procedure, which will allow individual children to submit
complaints regarding specific violations of their rights under the UN CRC
and its first two optional protocols. The Protocol has opened for signature in
2012 and it entered into force in April 2014, allowing children from states that
have ratified to bring complaints about violations of their rights directly to the
Committee – given that they have not found a solution at a national level.45
All States parties are obliged to submit regular reports to the Committee
on how the rights are being implemented. States must report initially two
years after acceding to the UN CRC and then every five years. The Committee
examines each report and addresses its concerns and recommendations to the
State party in the form of “concluding observations”.
The Committee reviews additional reports, which must be submitted by
States who have acceded to the two Optional Protocols to the UN CRC.
The Committee meets in Geneva and normally holds three sessions per
year consisting of a three-week plenary and a one-week pre-sessional working
group. In 2010, the Committee considered reports in two parallel chambers of
41
United Nations, Human Rights. Office of the High Commissioner for Human Rights
(2014). Committee on the Rights of the Child. http://www.ohchr.org/EN/HRBodies/CRC/
Pages/CRCIndex.aspx. Accessed 20 March 2014.
42
Optional Protocol to the Convention on the Rights of the Child on the involvement of
children in armed conflict. Adopted and opened for signature, ratification and accession by
General Assembly resolution A/RES/54/263 of 25 May 2000, entered into force 12 February 2002. http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPACCRC.aspx. Accessed 20
March 2014.
43
Optional Protocol to the Convention on the Rights of the Child on the sale of children,
child prostitution and child pornography. Adopted and opened for signature, ratification and
accession by General Assembly resolution A/RES/54/263 of 25 May 2000, entered into force
on 18 January 2002 http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPSCCRC.aspx.
Accessed 20 March 2014.
44
Optional Protocol to the Convention on the Rights of the Child on a communication
procedure, UN, 2011 – https://treaties.un.org/doc/source/signature/2012/CTC_4-11d.pdf.
45
Child Rights Connect (2014). Children can now seek justice through the UN. http://www.
childrightsconnect.org/index.php/connect-with-the-un-2/op3-crc/press-release-op3-crc.
76
Agnes Lux
9 members each, “as an exceptional and temporary measure”, in order to clear
the backlog of reports. The Committee also publishes its interpretation of the
content of human rights provisions, known as general comments on thematic
issues and organizes days of general discussion.
•
•
•
Which institutions protect the children’s rights, with special concern to the right of
non-discrimination? What about your country?
Is the current system of right protection efficient enough? Make a SWOT analysis!
Do you have any children’s rights ombudsman or other NHRI for children in your
country? How does it work?
Further readings
Haász, V. (2013). The Role of National Human Rights Institutions in the Implementation
of the UN Guiding Principles. Human Rights Review, Volume 14, Issue 3, pp 165–187.
Kucsko-Stadlmayer, G. (Ed.) (2008). European Ombusman-Institutions: A comparative legal analysis regarding the multifaceted realisation of an idea. Wien, New York: Springer.
Vuckovic Sahovic, N., Doek, J.E., Zermatten, J. (Eds.) (2012). The Rights of the Child in
International Law. Bern: Stämpfli Publishers.
Williams, J., Invernizzi, A. (Eds.) (2011): The Human Rights of Children. From Visions to
Implementation. Surrey, UK Ashgate Publishing Group.
CHAPTER3:GuidelinesoftheCommitteeofMinistersoftheCouncilofEuropeonchildfriendlyjustice(2010) –familylawaspect77
CHAPTER 3:
GUIDELINES OF THE COMMITTEE OF MINISTERS
OF THE COUNCIL OF EUROPE ON CHILD
FRIENDLY JUSTICE (2010) –
FAMILY LAW ASPECT
Dubravka Hrabar
CHAPTER 3: GUIDELINES OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE Dubravka Hrabar, Ph.D., Full professor, Head of the Department of family law, Faculty of law, University of Zagreb, Croatia,
Founder and head of the interdisciplinary MA studies in
children’s rights in Zagreb, winner of the Croatian State award
for the promotion of children’s rights.
[email protected]
1. Introduction
One of the principles which is fundamental for assessment and application of
children’s rights from the UN Convention on the Rights of the Child (1989)
is the principle of prohibition of discrimination from Article 2.1 It prescribes:
States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal
guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other
status.
States Parties shall take all appropriate measures to ensure that the child
is protected against all forms of discrimination or punishment on the
basis of the status, activities, expressed opinions, or beliefs of the child’s
parents, legal guardians, or family members.
1
Apart from this provision, in the Preamble to the Convention we also find provisions promoting the equality of all children. cf. the UN Convention on the Rights of the Child (adopted
20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC).
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Discrimination of children is possible on various grounds, and it is easier
to recognize if it is a matter of the unequal treatment of children based on
different race, skin colour, gender, language of religion, than discriminatory
treatment in some other situations. Therefore, the Convention on the Rights
of the Child leaves the possibility (in fact the prohibition) of discrimination
of children open due to some “other status”.
Unequal treatment of children by adults is possible on two levels. The first
is discrimination between children themselves, when the law or procedure
(public or private) allows or prohibits something for some children, and not
others, precisely due to different bases of discrimination. The other level of
discrimination of children is in relation to adults, when they are in the same
situation. Precisely court proceedings, which frequently also involve children,
are an example when a child may be overlooked and discriminated against in
the exercise of his or her right to express his or her opinion that are granted by
the Convention on the Rights of the Child, in relation to the rights of adults
in court proceedings2.
2. A Child’s Right to be Heard
In relation to the legal position of children in court proceedings, it should be
pointed out that the Convention on the Rights of the Child contains several
provisions which are fundamental for an understanding of many later documents related to this issue. First of all, this relates to Article 12 of the Convention, which states:
States Parties shall assure to the child who is capable of forming his
or her own views the right to express those views freely in all matters
affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national
law.
The first paragraph of the article is expressed very broadly, and points out the
strength of the subjectivity of a child in relation to all persons and all situations. Therefore, it respects the child’s person, self-awareness and autonomy.
The child is respected as the subject, not the object of actions (by adults). In
2
As we will see later, the need to protect children relates to court civil and criminal proceedings, but also to administrative proceedings.
CHAPTER 3: Guidelines of the Committee of Ministers of the Council of Europe 79
the second paragraph, which is related to formal procedures, the obligation
is prescribed of the state parties to act in the sense of enabling the child to
be heard.
Here two circumstances should be noted – the first is that hearing a child
represents a possibility, and not an obligation, and the second is that being
heard is a form of realization of the child’s right to express his or her opinion
(pursuant to paragraph 1 of the same Article). There is a logical connection
between the child’s right to express his or her opinion/view/attitude and the
duty of adults (individuals and institutions) to hear the child. Hearing a child
(just like the broader concept of expressing an opinion) is the child’s right, but
it is relative in character since the Convention on the Rights of the Child links
it with the age and maturity of the child. This is understandable in itself, since
children, in their first 18 years, pass through various phases of maturity and
understanding of the world around them and their own needs.
Age and maturity are very individual, and as a result the Convention does
not create an obligation to hear a child, but only prescribes that possibility.
The realization of this right of the child depends on a previous judgement
about how capable the child is, in terms of his or her age and maturity, of using his or her right, or forming and expressing an opinion. Although the possibility of hearing a child in some other situations also includes the non-verbal
option (e.g. drawings for younger children), court proceedings are formal and
in that sense the age and maturity of a child should affect whether a child will
be asked, if he or she wants to, to express his or her opinion. The basis of the
problem of effective participation by children in court proceedings is related
to the cognitive and emotional limitations of children. In family law proceedings3, similar to criminal proceedings, “psychosocial immaturity may affect
the performance of youths …, in ways that extend beyond the elements of
understanding and reasoning”4
A child’s opinion may be identified primarily with formulation of a viewpoint, such as a desire, attitudes and views, and their expression. Both processes depend on the age and maturity of the child. In order to understand
them, special and specific knowledge is often required (through the previous
education of professionals) and then evaluation. The Convention states that
the opinions (that is: views) are given significance in line with the age and
maturity of the child.
3
Such as divorce, annulment of marriage, child custody, contacts with other parent, maintenance, etc.
4
Thomas Grisso and others, “Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants” [2003] Law and Human Behaviour 27
(2) 357, quoted under Accounting for Consideration of Legal Capacity of Children in Legal
Proceedings, coll. papers, ERA, Belfast, 2013, 3.
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3. The Meaning of the Guidelines on Child Friendly Justice
We find ourselves in a time of change, when the shift towards more significant respect for children has spread beyond the child’s family circle. Protection of children and their rights is spreading into new areas, which relate to
the need for changes in the procedures by the authorities and the status of
children in proceedings. From the Guidelines on Child Friendly Justice5 of
2010, the obligation arises for national legislations to adjust their rules on the
procedural status of children to the new requirements, not only in the sense
of treatment of children, but also in recognition of children’s new procedural
status. As a result various documents have been adopted, which preceded the
Guidelines, but which have become part of policies aimed at children by the
Council of Europe.
In the Guidelines adopted by the Council of Europe, reference is made to
many European and global documents6, of which some are of general significance, and some have dedicated most of their content to children. The
Guidelines, although they are so-called soft or secondary law, and therefore a
non-binding legal act, still represent a valid reason for changing procedural
rules in civil proceedings (in and out of court) regarding the procedural position of children.
A child-friendly justice system, in a preliminary definition, would indicate a justice system in which all the relevant rights of the child are applied
to the highest possible level, taking into consideration the level of the child’s
5
Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, 17. November 2010.
6
The Guidelines refer to: The UN Convention relating to the Status of Refugees (adopted
28 July 1951, entered into force 22 April 1954) 189 UNTS 137, the International Covenant on
Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999
UNTS 171 (ICCPR), the International Covenant on Economic, Social and Cultural Rights
(adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR), the
UN Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2
September 1990) 1577 UNTS 3 (CRC), the UN Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3, the European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4
November 1950, entered into force 3 September 1954) ETS 005, as amended by Protocols Nos.
11 and 14 and supplemented by Protocols Nos. 1, 4, 6, 7, 12 and 13), the European Convention
on the Exercise of Children’s Rights (adopted 25 January 1996, entered into force 1 July 2000)
ETS no. 160, the European Social Charter (revised) (adopted 3 May 1996, entered into force 1
July 1999) ETS no. 163, the Council of Europe Convention on Contact Concerning Children
(adopted 15 May 2003, entered into force 1 September 2005) ETS no. 192, the Council of
Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse
(adopted 25 October 2007, entered into force 1 July 2010) CETS no. 201 and the European
Convention on the Adoption of Children (Revised) (adopted 27 November 2008, entered into
force 1 September 2011) CETS no. 202.
maturity and his or her ability to understand the circumstances of the case7.
By analysing the Guidelines, a rounded picture is gained of the special status
of children in court proceedings and of the need for special treatment of children, who find themselves before court in one way or another. That is to say,
in the preamble it is pointed out that the right of any person to have access to
justice and to a fair trial – in all its components (including in particular the
right to be informed, the right to be heard, the right to a legal defence, and
the right to be represented) – is necessary in a democratic society and equally
applies to children, taking however into account their capacity to form their
own views.
The Guidelines are applied in judicial and alternative proceedings (par.
I/1) which is interesting for all (family) legislations which have divided subject matter jurisdiction for family law situations (into court and administrative jurisdiction). Alternative proceedings are proceedings for peaceful resolution of the dispute.
4. Children in proceedings
The application of the Guidelines concerns all ways in which children are likely to be, for whatever reason and in whatever capacity, brought into contact
with all competent bodies and services involved in implementing criminal,
civil or administrative law (par. I./2.). Applied to family cases, this means that
a child could be the plaintiff or respondent or an intervener in the proceedings, but what is more common, a secondary subject when there is a conflict
between parents and children (e.g. in proceedings for the parents’ divorce).
The requirement is that a child in court proceedings is recognized (as a possibility but not an obligation for the reasons expressed earlier) open procedural
subjectivity.
Further, respect for the child’s right to information, representation, participation and protection throughout the proceedings should follow, in its full
extent, taking into account the maturity of the child and his or her ability to
understand the circumstances of the case. But, at the same time, this position
of the child should not jeopardise the rights of other parties involved (par.
I./3.). These rights of the child reflect on the one hand their vulnerability and
lack of knowledge, and their dependence on adults, on the other. Although
placing a child in the centre of the proceedings is important, it also must not
harm the other subjects and respect for the child’s position must not disturb
the balance of equality of all before court.
7
Ankie Vandekerckhove and Killian O’Brien, “Child-Friendly Justice: turning law into reality” [2013] ERA Forum 14, 4, Springer Berlin Heidelberg.
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Dubravka Hrabar
The concept of “child-friendly justice” is defined in par. II./c, and relates
to a justice system which guarantees the respect and the effective implementation of all children’s rights at the highest attainable level, bearing in mind
the principles listed below and giving due consideration to the child’s level
of maturity and understanding and the circumstances of the case. It is, in
particular, justice that is accessible, age appropriate (to the child), speedy, diligent, adapted to and focused on the needs and rights of the child, respecting
the rights of the child including the rights to due process, to participate in
and to understand the proceedings, to respect for private and family life and
to integrity and dignity.8
The fundamental principles are: participation, the best interests of the
child, dignity, protection from discrimination and the rule of law (according
to par. III). None of these principles should have any priority, but they must
all be equally represented in court proceedings.
The Guidelines advocate the complete participation of children in proceedings, taking into account the child’s maturity, and any communication
difficulties they may have. Children should be considered and treated as full
bearers of rights and should be entitled to exercise all their rights. Therefore,
the fact of the immaturity and dependence of a child should not in any way
affect his or her procedural position.
The best interest of the child became the standard in all Conventions adopted after the Convention on the Rights of the Child, and a principle of procedure, likewise in the Guidelines states are ordered to guarantee the application of this principle, whereby the assessment of the protection of the best
interest of the child relies on several factors:
• their views and opinions should be given due weight;
• all other rights of the child, such as the right to dignity, liberty and
equal treatment should be respected at all times;
• a comprehensive approach should be adopted by all relevant authorities
so as to take due account of all interests at stake, including psychological and physical well-being and legal, social and economic interests of
the child.
8
“Child-friendly justice” refers to justice systems which guarantee the respect and the effective
implementation of all children’s rights at the highest attainable level, bearing in mind the principles listed below and giving due consideration to the child’s level of maturity and understanding
and the circumstances of the case. It is, in particular, justice that is accessible, age appropriate,
speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights
of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity.”
5. A Multi-disciplinary and Interdisciplinary Approach
From the point of view of family (civil) court proceedings, the requirement
(par III/B/4) aimed at member states to establish multidisciplinary approaches, with the objective of assessing the best interests of children in procedures
involving them, appears very interesting. This means that the Guidelines recognize the need that consideration of child’s status depends on various professions (psychologist, defectologist, psychiatrist etc.) and that correct treatment
of a child assumes the complementary nature of these professions.
The procedural guarantees within the rule of law (par E/2) the principles
of legality and proportionality, the presumption of innocence9, the right to a
fair trial, the right to legal advice, the right to access to courts and the right to
appeal, should not differ from those for adults and should not be minimised
or denied under the pretext of the child’s best interests, regardless whether
it is a case of all judicial and non-judicial10 and administrative proceedings.
The Guidelines, further, offer so-called general elements of child-friendly
justice (par. IV) which include important guidelines for protection of children rights in civil proceedings (IV/A/14), on the necessity for interdisciplinary training on the rights and needs of children of different age groups, aimed
at all professionals working with and for children. Furthermore, they indicate
the need of training the professionals who have direct contact with children
(especially children in situations of particular vulnerability) in the sense of
training in communication (IV. A/15). Therefore, in this provision the need
the fact is recognized that professionals of various profiles must work together, obtain new, specific knowledge on children and the state must provide the
means for them to gain that knowledge.
This multidisciplinary approach to children is very important. The Guidelines require broad cooperation between various professionals, in order to
obtain a comprehensive understanding of the child, as well as an assessment
of his/her legal, psychological, social, emotional, physical and cognitive situation (IV. A/16). The various forms of professionals relate to some mentioned
by names: lawyers, psychologists, physicians, the police, immigration officials,
social workers and mediators, and all these as part of their joint cooperation,
should provide necessary support to those taking decisions (mainly judges) to
create formal decisions relating to a child. A/17).
9
10
Important for criminal proceedings.
This means for example arbitration or mediation proceedings.
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6. Assistance for Children by the Social Services
In view of children’s dependence and, as a rule, their immaturity and lack of
understanding of court proceedings, support for children may be provided
by various organizations and individuals. These may be social services, legal
clinics, the ombudsperson for children, NGOs, children’s telephone lines and
attorneys.
Social services should, just like the others, have specially equipped professionals who will apply all the requirements of child friendly justice. Which
means they must be available both in terms of their closeness (in a geographical sense), their working hours, and be free of charge (especially for poor children and those in an unfavourable position). Specialized social services relate
to a social-, legal and psychological approach, their continuous education,
experience and supervision, and their treatment must be non-stigmatizing.
The language used when addressing children must be friendly, they have to
be able to communicate in the child’s language, with clear objectives, respecting the child and his/her privacy/confidentiality, and be trustworthy. Goals
must be clear, and they must help the child to speak for him/herself (and not
on his/her behalf). There is a great need for a multi-disciplinary approach,
meaning legal and social services work together, with psychological knowledge, keeping in mind possible alternatives to judicial proceedings. The function of the social services is to promote new litigation methodologies, to avoid
sending the child from one service to another, to be clear about their role
and function, but also to be able to seek specialised support when needed.
The approach to each child must be individualised, protecting him/her and
taking into account the needs of that child (especially if the child is poor or
vulnerable). Social services should be able to ensure immediate emergency
intervention if needed, and report cases of danger. Of course, quality standards, monitoring and evaluation should be established, including complaint
mechanisms, recommendations and network working.11
7. Representation of Children and the Role of Attorneys
The Guidelines point to the need to respect the child’s right to their own legal
counsel and representation, in their own name, in proceedings where there is,
or could be, a conflict of interest between the child and the parents or other
involved parties (IV D/37), where legal aid should be free or under more lenient conditions than for adults (IV. D/38).
11
cf. Benoit Van Keirsbilck, “Child’s friendly justice guaranteeing children’s rights within the
EU legal framework“, coll. papers, ERA, Belfast, 2013.
Regarding representation of children in court proceedings (civil and family) the most relevant document is the European Convention on the Exercise
of Children’s Rights12 (1996), which analyses in detail children’s procedural
rights. As well as referring to this, in some of their provisions, the Guidelines develop some of the details. For example in par. IV/D/39–42, within
the framework of legal counsel, and representation of children in proceedings, the Guidelines require lawyers representing children to be trained in and
knowledgeable of children’s rights and related issues, to be capable of communicating with children at their level of understanding. At the same time,
the Guidelines consider children to be fully-fledged clients with their own
rights, and lawyers should provide the child with all necessary information
and explanations concerning the possible consequences of the child’s views
and/or opinions, and bring forward the opinion of the child. It is however
within the authority of the court in cases where there are conflicting interests
between parents and children, to appoint either a guardian ad litem or another independent representative to represent the views and interests of the
child. Therefore, the role of the representative is to become the primary link
between the court/the justice system and the child.
The role of the representative, when it is an attorney, or requests for his involvement, are determined by his availability, the ability to listen to the child,
sufficient number, working free of charge, offering a service that includes advice, support for the child in expressing his or her opinion, but not making
decisions in place of the child, protection of the child’s privacy (even in relation to the parents), following the entire proceedings, prompt action, ensuring monitoring of the situation even after the court decision.
Of course, legal aid includes legal advice, assistance and representation for
every person, in all kinds of procedures and at all stages of the proceedings.
There may be different models for the provision of legal aid, such as public
defenders, private lawyers, contract lawyers, pro bono schemes, bar associations, and paralegals.13 Legal aid should be understood as a very important
duty and the responsibility of the state, in cases where women and especially
children are involved.
12
The European Convention on the Exercise of Children’s Rights (adopted 25 January 1996,
entered into force 1 July 2000) ETS no. 160.
13
ibid.
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8. The Role of the Court
For many legal systems this important extension of court authority is mainly
expressed in the exercise of the child’s right to be heard and to express his/her
views. The established special obligation of the court is to respect the child’s
right to be heard in all matters/proceedings that affect them and is t to be
adapted to the child’s level of understanding and ability to communicate. The
Guidelines leave the decision about how the child is to be heard to the child,
although it is emphasized that this is a right and not the duty of the child. Due
weight should be given to the child’s views and opinion in accordance with
his or her age and maturity, and the court must not refuse to hear a child if
he/she do wishes. Naturally the court must explain to them that their right
to be heard and to have their views taken into consideration may not necessarily determine the final decision. We can interpret the role of the court in a
two-fold manner: on the one hand it is the symbol of justice and fairness, and
on the other it applies the law. Its role is very demanding, and in relation to
children as participants in court proceedings it is even more sensitive.
The principle of urgency is also pointed out in particular in the Guidelines
(IV/D/3/50–53), because it serves to protect the best interests of children. It
is certain, precisely in family proceedings (e.g. on parentage, parental custody,
abduction by a parent), that the urgency of proceedings requires “exceptional
diligence” by the court, to avoid undesirable effects on family relations.
A separate chapter in the Guidelines is dedicated to organisation of the
proceedings, child-friendly environment and child-friendly language (IV/
D/5/54–63). Of these requirements, we point out in particular the need for
children to be familiarised with the organization of the court and proceedings,
the use of language appropriate to children’s age and level of understanding,
the need for interaction with them to show respect and sensitivity and compassion14, the child should be allowed to be accompanied by their parents or,
where appropriate, an adult of their choice, interview methods, such as video
or audio-recording or pre-trial hearings in camera, should be used and considered as admissible evidence. Therefore, all these details are expression of
the large disproportion between the child and the court, which is visually closest to the image of David and Goliath. Therefore, supporting a child assumes
his or her acquaintance with the system and bringing it as close as possible
to the child’s level of understanding. It is noticeable that these requirements
range from psychological adjustment to the child (language, communication,
empathy) to legal instructions (the value of the child’s testimony).
14
The Guidelines use the English word sensitivity, and the French text uses the term sensibilité.
In the chapter on the time after the judicial proceedings,15 the Guidelines
require legal representatives (the child’s lawyer, guardian ad litem or guardian) to have an active and child-friendly relationship in communicating and
explaining the given decision or judgement and give the necessary information on possible measures that could be taken, such as appeal or independent
complaint mechanisms. We believe it is particularly important to point out
what is expressly stated, that implementation of judgements by force should be
a measure of last resort in family cases when children are involved (IV/E/78).
After judgements in highly conflictual proceedings, guidance and support
should be offered, ideally free of charge, to children and their families by specialised services (IV/E/79). The comment on these requirements is primarily to point out their applicability to emotionally more mature children and
those interested in the legal and judicial side of the problem, both during the
court proceedings and after them. Further, it is important that the Guidelines
recognize the harmfulness of forced implementation of court decisions, since
any enforcement on a child is at the same time punishment of that child and
the creation of new problems in communication and exercise of individual
rights, both for the parents and the child.
9. Future activities
As part of the chapter on promoting other child-friendly actions (par. V) the
states are encouraged to promote research into all aspects of child-friendly
justice, exchange practice and promote co-operation in the field of childfriendly justice internationally, promote the publication of relevant legal instruments, set up information offices for children’s rights, (possibly linked to
bar associations, welfare services, (children’s) ombudsmen, Non-governmental Organisations (NGOs), etc.), facilitate children’s access to courts and complaint mechanisms especially through NGOs and other independent bodies
or institutions such as children’s ombudsmen, and what seems to us to be
particularly important, establish system of specialised judges and lawyers for
children and further develop courts in which both legal and social measures
can be taken in favour of children. All this, alongside everything else16, is very
important for a correct approach to children in court proceedings.
15
The so-called child-friendly justice after judicial proceedings.
For this subject it is less important for instance for children to be acquainted with the
European Convention for the Protection of Human Rights and Fundamental Freedoms (cf. n
6), inclusion of children’s rights in the school curriculum, acquainting parents with the importance of children’s rights etc.
16
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Dubravka Hrabar
The system of protection of children in court proceedings must be a response to the necessary balance between over-protection of children and noprotection. An insight into the average situation in European Union member
states allows us to conclude that at this time an exceptionally important requirement of the Guidelines is (V/l.) – for states to ensure that all concerned
professionals working in contact with children in justice systems receive appropriate support and training, as well as practical guidance in order to guarantee and implement adequately the rights of children, in particular while
assessing children’s best interests in all types of proceedings involving or affecting them. Regardless of the fact that they are children, they are often involved in court proceedings directly or indirectly, and access to court should
be considered to be a fundamental right. Regardless of the basic idea, that
it would be good for children to live in an environment where they have no
contact with the justice system, which means without any problems, the fact
is that various situations exist in which children come into contact with it
(their parents’ divorce, criminal proceedings, whether as witnesses, victims,
or perpetrators, asylum seekers etc.).
10. Conclusion
As a conclusion, the following should be pointed out with regard to the
Guidelines:
• their aim is for member states to change their legal systems in way to
protect the special needs of children, realizing internationally agreed
principles17;
• the Guidelines are part of the strategy of the Council of Europe on Children’s Rights18 and states are expected to act effectively in that direction;
• all this assumes that states must actively approach the application of
the guidelines on a professional and financial level, so that the national
judicial systems would be transformed towards providing a better legal
position for children in court proceedings.
17
“ ... member states are encouraged to adapt their legal systems to the specific needs of
children, bridging the gap between internationally agreed principles and reality” <http://
www.coe.int/t/dghl/standardsetting/childjustice/Guidelines_en.asp> accessed 7 September
2012
18
“These guidelines form an integral part of the Council of Europe’ strategy on children’s
rights and its programme “Building a Europe for and with children”. A series of promotion,
co-operation and monitoring activities are planned in member states in view of ensuring effective implementation of the guidelines for the benefit of all children.”; ibid.
Guidelines, if adopted and implemented in every European country, that is
a member of the Council of Europe, could eliminate a special type of child
discrimination that happens in court almost daily. Namely, there is a universal request for equal treatment and opportunities of children in the sense to
respect the child’s right to express his/her views freely and according to his/
her age and maturity.
In conclusion, the application of the Guidelines will only be appropriate
if all the states actively move towards exercising them, and guarantees for
their exercise, concrete support, evaluation, exchange of experience and good
practice are expected from everyone.
•
•
•
•
•
•
•
•
•
•
•
•
What does the principle of prohibition of discrimination of children relate to?
What is the fundamental global document dedicated to the protection of children?
What do you know about the right of a child to be heard?
Which body adopted the Guidelines on child-friendly justice?
Are the Guidelines binding for member states of the CE or the EU?
In which court proceedings are the Guidelines applied?
Where is the multidisciplinary and interdisciplinary approach to children seen?
What is the role of the court, and that of the child’s representative in court proceedings?
Which services are able to help children during proceedings?
On what principles are the Guidelines based?
Have you heard about any case (in your country or elsewhere) violating the child’s
right to be heard?
What type of family disputes could affect a child’s right to be heard?
Further readings
“Compilation of texts related to child-friendly justice” Directorate general of human
rights and legal affairs [2009] Council of Europe <http://www.coe.int/t/dghl/standardsetting/childjustice/childfriendly_EN.pdf>
“Complementarities and synergies between juvenile justice and social services sector, The
proceedings of the ChildONEurope seminar on juvenile justice” [2012] Istituto degli
Innocenti <http://www.childoneurope.org/issues/publications/coe%206_web.pdf>
Muncie, J., Goldson, B. “Towards a global ‘child friendly’ juvenile justice?” [2012] 40 (1)
International Journal of Law, Crime and Justice 47–64
Gudbrandsson, B. “Towards a child-friendly justice and support for child victims of sexual abuse”, Protecting Children from Sexual Violence: A Comprehensive Approach
90
Dubravka Hrabar
[2010] <http://www.coe.int/t/dg3/children/1in5/Source/PublicationSexualViolence/
Gudbrandsson.pdf>
O’Donnel, R. “The role of the EU legal and policy framework in strengthening child
friendly justice” [2013] 14 4 ERA Forum Springer Berlin Heidelberg, 507–521
CHAPTER4:Children’sParticipationinFamilyMediation:anExampleofNewChallengesforNon-Discrimination91
CHAPTER 4:
CHILDREN’S PARTICIPATION IN
FAMILY MEDIATION: AN EXAMPLE
OF NEW CHALLENGES FOR
NON-DISCRIMINATION
Irena Majstorović
Irena Majstorović, Ph.D., Associate professor, Department of Family Law, Faculty of Law, University of Zagreb, Deputy Head of
Interdisciplinary MA Studies in Children’s Rights in Zagreb.
[email protected]
1. Introductory remarks
Protection of children from discrimination is a common point in contemporary scientific and public discourse. The idea has developed slowly, mostly
after World War II, but it was strongly supported by the international community and has become almost universally accepted. Therefore, modern societies, on the level of declaration at least, are committed to the protection
of children. However, certain limitations and obstacles can be identified as
well. The purpose of this contribution is to examine how the principle of nondiscrimination functions not only in vertical relationships between the state
and the family, but also in horizontal relationships, namely those within the
family, especially in circumstances when there is a conflict of interest between
family members.
We shall try to prove that enormous development in the field of protecting
children from discrimination has been done, but much effort still remains to
be undertaken. We shall in particular attempt to verify this hypothesis in the
field of family mediation, since the legal and social arena is gaining ever more
importance. Namely, it is exactly such sensitive family issues that underline
the significance of the need to protect the children. Open issues are numerous and include among other the fact that certain systems completely ignore
the role of children in mediation procedures, which presents a form of age
92
Irena Majstorović
discrimination. Furthermore, it should be stated that not all mediation procedures involving and including children are considered to be child-friendly.
In any case, although we declare that children should not be discriminated
against at all, and in family issues in particular, discrimination against children does take place. The discrimination is a consequence not only of particularities of family and family life in general, but also of insufficient level of
awareness that children are legal subjects whose right to express their views
and to participate in procedures relevant for the whole family has to be guaranteed and respected in theory and in practice.
Namely, family has always been considered the most important and ideal
surrounding for the upbringing of a child. In the legal sense, its importance
has been further underlined by the notion that it is the natural and fundamental group unit of society, entitled to protection by society and the state.1
Family also comprises the notion of intimacy, of a close circle of relatives,
either by blood or by marriage, whose relationships are private and special.
It is their right to keep their family right to themselves, under the condition
that it is a harmonious and satisfactory life for all, and especially its vulnerable
members. Hence, bearing in mind the principle of non-intervention in family
matters unless the situation demands it, societies are to be very cautious when
and how to intervene.
For the purpose of this contribution, we shall try to evaluate the appropriateness of demands the state is posing upon the family members in regards to
the family mediation. In that regard, we shall endeavour to describe the family mediation processes, in particular those related to separation and divorce
proceedings, to shed light on the issues of children’s participation in mediation. Namely, it is our hypothesis that children must not be discriminated
against in these procedures, on the basis of their age and immaturity.
On the contrary, children’s participation should be measured in line with
the child’s age and maturity. They should be given the opportunity to have
their opinion heard. Nevertheless, all our activities related to children have to
be in line with the principle of the best interest of the child itself. It is our concern that in certain situations the states, that is the legal systems, are inclined
to allow or to advocate for more participation from the children in mediation
1
cf. Article 16 of the Universal declaration of human rights (adopted 10 December 1948),
Resolution 217 A (III)
<http://www.un.org/en/documents/udhr>, Article 23 of the International covenant on civil
and political rights (adopted 16 December 1966, entered into force 23 March 1976) 999
UNTS 171 (ICCPR), <https://treaties.un.org/doc/Treaties/1976/03/19760323%2006-17%20
AM/Ch_IV_04.pdf> and also the Preamble of the Convention of the rights of the child
(adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC)
<https://treaties.un.org/doc/Treaties/1990/09/19900902%2003-14%20AM/Ch_IV_11p.pdf>.
All sites referred to in this text have been accessed 2 February 2014.
CHAPTER 4: Children’s Participation in Family Mediation 93
procedures, give them more rights and hence responsibilities than the children would have wanted.
We have come a long way since the times before the rights of the child were
recognised in theory and in practice, when the children did not have any say,
up to the recent times when children are almost forced to make their opinion
heard. Although this development is generally positive, there are new issues
on the horizon. The pendulum in recognising the opinion of the child and
acting accordingly is sliding in another direction, but the question remains –
how far should we allow it to slide? Where is the balance?
2. Family disputes as a particular category of life and legal issues
Family relationships are always considered to be special; they refer to intimate and private nuances of life, which are significant for all. The same notion
stands for family disputes, being of special importance as well. There are at
least three specific characteristics of family disputes.2 Firstly, family disputes
involve persons who, by definition, will have interdependent and continued
relationships. Secondly, family disputes arise in a context of distressing emotions and increase them. And thirdly, separation and divorce impact on all
members of the family especially children.3
Contemporary history witnesses the breakdown of the family in general.
The family situation and its relevance are different in different states, as a consequence of different historical developments, tradition and common beliefs
of citizens. Nevertheless, certain common trends can be identified and in particular:
• the decline in the number of marriages and the postponement of entering into marriage and having children;4
2
Para 7 of the Preamble to the Recommendation No. R (98) 1 of the Committee of ministers to member states of the Council of Europe on family mediation <https://wcd.coe.int/
com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=11539
72&SecMode=1&DocId=450792&Usage=2>
3
Although coming from another continent, Australian experiences warn that, according to
a study published in 2000, dependent children of divorced parents were twice as likely (25%
versus 12%) as children from never-separated families to develop mental health difficulties in
childhood (manifested in behavioural and emotional disturbances). Cited according to: Jennifer McIntosh, “Child inclusion as a principle and as evidence-based practice: Applications
to family law services and related sectors” [2007] 1 Australian family relationships clearinghouse, Issues 1, 3. For a European perspective regarding Norway and England, cf: Adrian
L. James et al., “The voice of the child in family mediation: Norway and England” [2010] 18
International journal of children’s rights 313–333.
4
The Eurostat reports state that the crude marriage rate in the EU declined from 7.9
marriages per 1 000 inhabitants in 1970 to 4.4 marriages per 1 000 inhabitants by 2010, a
94
Irena Majstorović
• the increase in the number of divorces;5
• the increase in the number of registered partnerships6 and the increase of the number of extra-marital children;7 and also
• the increase in the number of monoparental families.8
This is definitely an unstoppable process, but it should be mentioned that one
important right persists for the family members also after the breakdown of a
family union – the right to family life. This subjective human right is guaranteed by two highly important European human rights documents. Firstly, it is
defined in Article 8 Paragraph 1 of the European convention for the protection of human rights and fundamental freedoms (ECHR):9 Everyone has the
right to respect for his private and family life, his home and his correspondence.
Secondly, this right is also guaranteed by the Charter of fundamental rights of
reduction of 3.5 marriages per 1 000 inhabitants and an overall decline of 36 % in the absolute number of marriages. cf. <http://epp.eurostat.ec.europa.eu/statistics_explained/index.
php?title=File:Crude_marriage_rate,_seleted_years,_1960-2011_(per_1_000_inhabitants).
png&filetimestamp=20130130111229>
5
According to Eurostat reports, the crude divorce rate almost doubled from 1.0 divorce per
1 000 inhabitants in 1970 to 1.9 divorces by 2009, partly rising due to allowing the divorce in
the states in which it was not allowed before – in Italy until 1970, in Spain until 1981, in Ireland
until 1995 and in Malta until 2011 <http://epp.eurostat.ec.europa.eu/statistics_explained/index.php?title=File:Crude_divorce_rate,_selected_years,_1960-2011_(1)_(per_1_000_inhabitants).png&filetimestamp=20130130111212>
6
In view of the different status of married and non-married couples, it should be stated
that the Directive 38/2004/EC defines that, for the purpose of the Directive, the definition of
“family member” should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage (para. 5. of the Preamble). cf.
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the
right of citizens of the Union and their family members to move and reside freely within the
territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/
EEC, 90/365/EEC and 93/96/EEC [2004] OJ L158/77 <http://eur-lex.europa.eu/LexUriServ/
LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF>
7
It is to be noted that the number of children born out of wedlock is constantly growing
<http://epp.eurostat.ec.europa.eu/statistics_explained/index.php?title=File:Live_births_
outside_marriage,_1960-2011_(%25_share_of_total_live_births).png&filetimestamp=
20130130111239>
8
<http://epp.eurostat.ec.europa.eu/statistics_explained/index.php?title=File:Private_
households_by_household_composition,_2011.png&filetimestamp=20131004104540>
It should be also mentioned that such families bear a significant risk of monetary poverty,
as, according to Eurostat, one out of three households in this group tended to be affected
in 2011 at the level of the EU <http://epp.eurostat.ec.europa.eu/statistics_explained/index.
php?title=File:Single_parents_with_dependent_children_at_risk_of_poverty_or_social_
exclusion,_EU-27,_2005,_2008_and_2011Fig5_7.png&filetimestamp=20131024082238>
9
Adopted 4 November 1950, entered into force 3 September 1954, ETS 005, as amended by
Protocols Nos. 11 and 14 and supplemented by Protocols Nos. 1, 4, 6, 7, 12 and 13. The text of
the convention is available at: <http://www.echr.coe.int/Documents/Convention_ENG.pdf>
the European Union,10 which in Article 7 stipulates: Everyone has the right to
respect for his or her private and family life, home and communications.
For the purpose of this paper, three important questions are to be answered. Firstly, what is the state of the art in global and regional legal documents regarding mediation in family matters and children’s participation in
particular? Secondly, which role should children be given in the legal settling
of family breakdown issues? This is the issue primarily posed by the legal
development of children’s rights and the right of the child to express his/her
views, now a part of several global and regional (European) documents. And
thirdly, being of particular significance for the topic of this paper, what is the
role of children in the mediation procedures, namely which are the aim and
the scope, as well as the caveats of their participation that practice is warning
us about? Hence, in the following chapter we shall try to summarize most
important legal provisions and define the main challenges linked to it.
3. The global legal framework
3.1. The United Nations Convention on the rights of the child (UNCRC)
The UNCRC is the most important global instrument for the protection of the
rights of the child. Out of the numerous rights it guarantees to children, the
one particularly relevant for the topic of this paper is Article 12, which states:
States Parties shall assure to the child who is capable of forming his
or her own views the right to express those views freely in all matters
affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting
the child, either directly, or through a representative or an appropriate
body, in a manner consistent with the procedural rules of national law.
In the General comment no. 12 on the right of the child to be heard, the Committee on the rights of the child reiterates that the right for a child to express
her or his views is definitely one of the fundamental values of the Convention,
and this article is considered to be a unique provision in a human rights treaty
while it addresses the legal and social status of children, who lack the full autonomy but are subjects to rights.11
10
Official journal of the European Union, C 83, 30.3.2010, available at: http://eur-lex.
europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF
11
General comment no. 12 (2009) – The right of the child to be heard, Committee on
the rights of the child, 25.6.2009, 3 <http://www2.ohchr.org/english/bodies/crc/docs/
AdvanceVersions/CRC-C-GC-12.pdf>
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Irena Majstorović
In regards to the separation and divorce proceedings, being relevant for the
purpose of this paper, the Committee on the rights of the child has defined that
all legislation has to include the right of the child to be heard by decision makers and in mediation processes.12 Furthermore, this General comment resolves
a doubt still pending in some national legislation in connection to the age of
children that are to be guaranteed this right. The Committee reminds us that
the UNCRC itself “anticipates that this matter be determined on a case-by-case
basis, since it refers to age and maturity, and for this reason requires an individual assessment of the capacity of the child”.13 Hence, attempts of national
documents to set an age limit are unnecessary and unsatisfactory.14 Moreover, it
should be noted that it is not up to the child to prove her or his maturity, but the
states should presume that a child has the capacity to form her or his own views
and recognise that she or he has the right to express them.15
It is also worth mentioning that the Third optional protocol on the CRC on
a communications procedure,16 entering into force in April 2014, reiterates in
its Preamble among others:
Reaffirming also the status of the child as a subject of rights and as a human being with dignity and with evolving capacities,
Recognizing that children’s special and dependent status may create real
difficulties for them in pursuing remedies for violations of their rights
Considering that the present Protocol will reinforce and complement national and regional mechanisms allowing children to submit complaints
for violations of their rights, ...
Encouraging States parties to develop appropriate national mechanisms
to enable a child whose rights have been violated to have access to effective
remedies at the domestic level.
Also, in Articles 2 and 3 of the Third optional protocol, the general principles
guiding the functions of the Committee on the rights of the child and the
rules of procedure are defined as follows:
12
ibid para. 52.
ibid.
14
cf. the data presented in the Preliminary draft report by Peter Newell, “Children’s rights
and disputes over parental divorce and separation – ENOC survey”, in: “Children and disputed divorces, A collection of presentations given at the Annual Conference of the Children’s Rights Ombudspersons’ Network in South and Eastern Europe and expert meetings
organised by the Ombudsperson for Children of the Republic of Croatia” [2010] Ombudsperson for children Croatia, Zagreb, 23, 28, 29 <http://www.dijete.hr/hr/izvjemainmenu-93/
doc_details/338-children-and-disputed-divorces.html> Also, cf. the research of Norwegian
and British system, James (n 3).
15
Para 20. of the General comment no. 12 (2009).
16
The text of the protocol is available at: <http://www2.ohchr.org/english/bodies/crc/docs/
CRC-OP-IC-ENG.pdf>
13
General principles guiding the functions of the Committee
In fulfilling the functions conferred on it by the present Protocol, the Committee shall be guided by the principle of the best interests of the child. It
shall also have regard for the rights and views of the child, the views of the
child being given due weight in accordance with the age and maturity of
the child.
Rules of procedure
1. The Committee shall adopt rules of procedure to be followed when exercising the functions conferred on it by the present Protocol. In doing so,
it shall have regard, in particular, for article 2 of the present Protocol in
order to guarantee child-sensitive procedures.
2. The Committee shall include in its rules of procedure safeguards to prevent the manipulation of the child by those acting on his or her behalf and
may decline to examine any communication that it considers not to be in
the child’s best interests.
It is quite likely that the Third optional protocol shall provoke numerous proceedings in which ever more children shall be submitting complaints. However, it should be noted that the precondition for the children to realise their
rights is the children’s awareness of the existence of those rights,, which very
often unfortunately shall not be fulfilled.
3.2. The Hague conventions for the protection of children
The Hague conference for the international private law has not drafted a particular convention on mediation yet. Still, mediation in general is regularly
mentioned in conventions regarding the legal position of children.
The Hague Convention on the civil aspects of international child abduction
of 198017 did not mention mediation explicitly, but it was soon noticed that it
is important to set common rules and goals for all states party to the Convention. Hence, in 2012, the Permanent bureau of the Hague conference for the
international private law published the Revised draft guide to good practice
under the Convention on mediation18, which in its seventh part presents a
common position on the involvement of children in family mediation.
17
Adopted 25 October 1980, entered into force 1 December 1983. Text of the convention is
available at <http://www.hcch.net/index_en.php?act=conventions.text&cid=24>
18
Revised draft guide to good practice under the Hague Convention of 25 October 1980
on the Civil Aspects of International Child Abduction, Part V – Mediation, drawn up by
the Permanent Bureau, available at <http://www.hcch.net/index_en.php?act=publications.
details&pid=5537&dtid=52>
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Irena Majstorović
As a general remark it is noted that the involvement of a child in the resolution of the dispute can serve different purposes. “First, listening to the
child’s views provides insight into his or her feelings and wishes, which may
be important information when it comes to determining whether a solution
is in the child’s best interests. Second, it may open the parents’ eyes to their
child’s wishes and help them to distance themselves from their own positions
for the sake of an acceptable common solution. Third, the child’s involvement
respects the child’s right to be heard while at the same time providing an opportunity for the child to be informed about what is going on.”19
As Coley puts it, the hearing of children demands two fundamental
changes: firstly, it requires that those tasked with listening to children have the
training and experience to understand what children say and secondly, that
hearing what children say necessitates valuing a broader array of interests,
while “children speak in terms of relationships, interdependence and case,
and the legal system is unable to hear them so long as it continues to give
priority to abstract, individualistic rights”.20
The provision of the 1980 Hague convention that needs to be further
stressed is Article 13 Paragraph 2 which defines as follows: “The judicial or
administrative authority may also refuse to order the return of the child if it
finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”
This is in line with the generally accepted right of the child to be heard.
However, two major warnings are emphasised in the Revised draft guide.21
On the one hand, the child’s views are to be considered in mediation in accordance with the child’s age and maturity. On the other, careful consideration
is to be paid as to how the child’s views can be introduced into the mediation
and whether the child should be involved directly or indirectly, depending on
the circumstances of each individual case.22
The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law,
Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children23: it is the role of the central
authority to take all appropriate steps to facilitate, by mediation, conciliation
19
ibid 67.
Maria Coley, “Children’s voices in access and custody decisions: the need to reconceptualise rights and effect transformative change” [2007] 12 Appeal 48, 49.
21
ibid 69.
22
An excellent example of the need to be particularly cautious is given in the example by
Jennifer McIntosh “Kerry’s meeting with Eric“, which illustrates the nuances and the pit-falls
which can occur in any involvement of children in proceedings. Jennifer McIntosh, “Child
inclusion as a principle and as evidence-based practice: Applications to family law services
and related sectors” [2007] 1 Australian family relationships clearinghouse Issues 1, 18–20.
23
Adopted 19 October 1996, entered into force 1 January 2002. The text of the convention is
available at: <http://www.hcch.net/index_en.php?act=conventions.text&cid=70>
20
or similar means agreed solutions for the protection of the person or property
of the child in situations to which the Convention applies (Art 31, Point b).
Under the influence of Article 12 of the UNCRC, this Convention provides in
Article 23 Paragraph 23 Subparagraph b that recognition of a measure taken
in a Contracting State may be refused
if the measure was taken, except in a case of urgency, in the context of a
judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles
of procedure of the requested State.
In The Hague Convention of 23 November 2007 on the International Recovery
of Child Support and Other Forms of Family Maintenance24, it is defined that
central authorities, inter alia, “shall take all appropriate measures to encourage amicable solutions with a view to obtaining voluntary payment of maintenance, where suitable by use of mediation, conciliation or similar processes”
(Article 3, Paragraph 2, Subparagraph d). Also, it is stated that contracting
states shall make available in internal law effective measures to enforce decisions under this Convention, which measures may include, among other, the
use of mediation, conciliation or similar processes to bring about voluntary
compliance (Article 34, Paragraph 2, Subparagraph i).
4. European framework of family law mediation
The Europeanization of family law is a process that started decades ago, but
family law is not common in Europe and the common European family law in
the substantive meaning of the word does not exist. However, the harmonisation and unification initiatives are gaining ever more importance. The Council of Europe has commenced its activities in the field in the late sixties of the
20th centuryago and it has implemented voluntary and gradual approach. The
European Union however has included family law in its area of interest only
within the last two decades. Unlike the COE, the EU is advocating for a fragmental and mostly Brussels-imposed approach. Still, family law is a matter of
national competence and the change in the legal paradigm would, in congruence with the principle of referral25, require that the member states confer
their competences in this field to the Union.
24
Adopted 23 November 2007, entered into force 1 January 2013. The text of the convention
is available at: <http://www.hcch.net/index_en.php?act=conventions.text&cid=131>
25
cf. Article 5 of the Treaty on European Union:
1. The limits of Union competences are governed by the principle of conferral. The use of
Union competences is governed by the principles of subsidiarity and proportionality.
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Irena Majstorović
Within this new field, the mediation is a relatively new approach as well,
which poses a counterbalance to the well-rooted concept of court decisions
that are imposed to the parties. Mediation is usually understood as “a process
in which a third party, the mediator, impartial and neutral, assists the parties
themselves to negotiate over the issues in dispute and reach their own joint
agreements”.26 It is said that the use of family mediation has the potential to:27
•
•
•
•
•
improve communication between members of the family;
reduce conflict between parties in dispute;
produce amicable settlements;
provide continuity of personal contacts between parents and children;
lower the social and economic costs of separation and divorce for the
parties themselves and states; and to
• reduce the length of time otherwise required to settle conflict.
4.1. The activities of the Council of Europe
On the European regional level, the Council of Europe has undertaken most
important activities in this field for decades. The documents relevant for the
topic of this contribution include the Convention on the exercise on the rights
of the child of 199628, Convention on contact concerning children29, as well
as three soft-law instruments: Recommendation No. R (98) 1 of the Commit2. Under the principle of conferral, the Union shall act only within the limits of the competences
conferred upon it by the Member States in the Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member States.
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence,
the Union shall act only if and in so far as the objectives of the proposed action cannot be
sufficiently achieved by the Member States, either at central level or at regional and local level,
but can rather, by reason of the scale or effects of the proposed action, be better achieved
at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid
down in the Protocol on the application of the principles of subsidiarity and proportionality.
National Parliaments ensure compliance with the principle of subsidiarity in accordance with
the procedure set out in that Protocol.
4. Under the principle of proportionality, the content and form of Union action shall not
exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union
shall apply the principle of proportionality as laid down in the Protocol on the application of
the principles of subsidiarity and proportionality.
Consolidated version of the Treaty on European Union [2012] OJ C326/13 <http://eur-lex.
europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:326:0013:0046:EN:PDF>
26
Para. 10. of the Preamble to Recommendation No. R (98) 1 of the Committee of ministers
to member states on family mediation.
27
Para 7. of the same Preamble.
28
ETS no. 60. The text of the convention is available at: <http://conventions.coe.int/Treaty/
en/Treaties/Html/160.htm>
29
ETS no. 192. The text of the convention is available at: <http://conventions.coe.int/Treaty/
en/Treaties/Html/192.htm>
tee of ministers to member states on family mediation30, Recommendation
1639 (2003) on family mediation and gender equality31, and the Guidelines
on child-friendly justice (2010).32 It is also worth mentioning that mediation
in civil matters in general and mediation in penal matters have also been in
focus of interest of the COE institutions33, as alternatives to litigation between
administrative authorities and private parties have as well34, but they are not
relevant for the topic of this contribution.
The aim of the European convention on the exercise of children’s rights is
threefold. Namely, in guaranteeing and protecting the procedural rights of a
child, three special procedural types of rights are granted to a child: right to be
informed and to express his or her views in proceedings, right to apply for the
appointment of a special representative, as well as other possible procedural
rights. The most significant one for the purpose of this paper is the first abovementioned, namely in Article 3, it is said that:
A child considered by internal law as having sufficient understanding, in
the case of proceedings before a judicial authority affecting him or her,
shall be granted, and shall be entitled to request, the following rights:
• to receive all relevant information;
• to be consulted and express his or her views;
• to be informed of the possible consequences of compliance with
these views and the possible consequences of any decision.
Also, in Article 13, this Convention explicitly mentions mediation as a useful
alternative dispute resolution mechanism:
In order to prevent or resolve disputes or to avoid proceedings before a
judicial authority affecting children, Parties shall encourage the provision
30
The text of the recommendation is available, as stated earlier, at: <https://wcd.coe.int/com.
instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=1153972&S
ecMode=1&DocId=450792&Usage=2>
31
The text of the recommendation is available at: <http://assembly.coe.int/Documents/AdoptedText/ta03/EREC1639.htm>
32
The text of the guidelines, which are the topic of contribution of Professor Hrabar to this
publication, is available at: <https://wcd.coe.int/ViewDoc.jsp?id=1705197>
33
See: Recommendation Rec (2002) 10 of the Committee of Ministers to member states
of the Council of Europe on mediation in civil matters <https://wcd.coe.int/ViewDoc.
jsp?id=306401&Site=COE>, and Recommendation No. R (99) 19 of the Committee of Ministers to member States concerning mediation in penal matters <https://wcd.coe.int/ViewDoc.
jsp?id=420059> respectively.
34
See: Recommendation Rec (2001) 9 on alternatives to litigation between administrative authorities and private parties of the Council of Europe <https://wcd.coe.int/ViewDoc.
jsp?id=220409&Back>
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Irena Majstorović
of mediation or other processes to resolve disputes and the use of such
processes to reach agreement in appropriate cases to be determined by
Parties.
The likewise threefold scope of the European convention on contact concerning children includes: determining general principles to be applied to contact orders; fixing appropriate safeguards and guarantees to ensure the proper
exercise of contact and the immediate return of children at the end of the
period of contact; and establishing co-operation between central authorities,
judicial authorities and other bodies in order to promote and improve contact
between children and their parents, and other persons having family ties with
children.
Also similarly to the Convention on the exercise of children’s rights, this
Convention defines in Article 7, Paragraph b in regards to resolving disputes
concerning contact that it is the role of the judicial authorities to take all appropriate measures:
…to encourage parents and other persons having family ties with the
child to reach amicable agreements with respect to contact, in particular
through the use of family mediation and other processes for resolving disputes.
Recommendation No. R (98) 1 of the Committee of ministers to member
states on family mediation stems from the observation by the Council of Europe’s institutions that modern societies have to recognise the growing number of family disputes, particularly this resulting from separation or divorce
and also to note “the detrimental consequences of conflict for families” and
the high social and economic cost to states.35 Furthermore, the necessity of
ensuring the protection of best interest and the welfare of the child is pointed
out.
Regarding the scope of mediation, this recommendation foresees that it
may be applied in all disputes between members of the same family, whether
related by blood or marriage, and to those who are living or have lived in family relationships as defined by national law. However, in accordance with the
general principle of autonomy of the member states of the Council of Europe,
it is further emphasised that states are free to determine the specific issues or
cases covered by family mediation.
35
Para 2 of the Preamble to this recommendation.
As one of the ten principles of the process of mediation, it is stated that
“the mediator should have a special concern for the welfare and the best
interest of the children, should encourage parents to focus on the needs of
children and should remind parents of their prime responsibility relating
to the welfare of their children and the need for them to inform and consult their children”.36
This is a very important element, since consultation with children might have
a significant influence in rethinking the relationships not only between parents and children, but between parents themselves as well.
In regards to international matters, having in mind the ever growing number of family disputes with an international element, it is recommended that
the states should consider setting up mechanisms for the use of mediation in
cases with an international element when appropriate, especially in all matters regarding children, and particularly those concerning custody and access
when the parents are living or expect to live in different states. Furthermore,
international mediation should be considered as an appropriate process in
order to enable parents to organise or reorganise custody and access, or to
resolve disputes following decisions having been made in relation to those
matters. It is also emphasised that in the event of improper removal or retention of the child, international mediation should not be used if it would delay
the prompt return of the child.37
In 2005, the European commission for the efficiency of justice (CEPEJ)
proposed Guidelines for a better implementation of the existing recommendations concerning family mediation and mediation in civil matters.38 Two
conclusions or non-binding guidelines are to be mentioned in this paper:
firstly, the CEPEJ holds that where family mediation is concerned, member
states of the Council of Europe unanimously recognise the importance of the
best interest of the child, although the criteria vary according to national legislations.
Secondly, it is the recommendation of the CEPEJ that member states and
other bodies involved in family mediation work together to establish common valuation criteria to serve the best interests of the child, including the
possibility for children to take part in the mediation process. These criteria
should include the relevance of the child’s age or mental maturity, the role of
parents and the nature of the dispute.
36
Principles of family mediation – III. Process of mediation, point viii.
Principles of family mediation – VIII. International matters
38
European commission for the efficiency of justice (CEPEJ): Better implementation of
mediation in member states of the Council of Europe, Concrete rules and provisions [2005]
http://www.coe.int/t/dghl/cooperation/cepej/series/Etudes5Ameliorer_en.pdf>
37
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Irena Majstorović
In view of Recommendation 1639 (2003) on family mediation and gender equality, it can be re-established that family mediation is a life-building
and life-management process between family members in the presence of an
independent and impartial third party known as the mediator.39 Also, it has
been reiterated that it is essential to ensure mediation does not lead to an
agreement that satisfies the wishes of one party if this party dominates the
other in any way whatsoever. “When the bone of contention is the child, he or
she should also be heard in the mediation process because he or she is recognised as having rights. Children should be allowed their say if a solution is to
be found that is genuinely in their best interests.”40 Also, it has been verified
by research that children are extremely influenced by divorce and that their
emotions at that period may leave grave consequences for life.41
Guidelines on child friendly justice from 2010 are considered to be a step
forward in guaranteeing that proceedings of criminal, civil or administrative
law “all rights of children, among which the right to information, to representation, to participation and to protection, are fully respected with due consideration to the child’s level of maturity and understanding as well as to the
circumstances of the case.” (Section I, Point 3).42 In Guideline 24, it is defined
that:
Alternatives to judicial proceedings such as mediation, diversion (of judicial mechanisms) and alternative dispute resolution should be encouraged whenever these may best serve the child’s best interests. The preliminary use of such alternatives should not be used as an obstacle to the
child’s access to justice.
In the Explanatory memorandum, it is further explained that before bringing
cases to court, it may be in the child’s best interests to turn to methods of alternative dispute resolution (ADR), such as mediation, since these guidelines
cover proceedings both in and outside court.43 It is often stated that in certain
cases ADR methods are not only more efficient but more likely to solve further problematic issues, in line with the presumption that conflicts are to be
39
Article 1 of this recommendation.
Para 6 of this recommendation.
41
It is sometimes said that the anger children feel in their parents’ divorce proceedings robs
them of their childhood. And vice versa, forgiveness may be more important for children of
divorce than for any other group. Solangel Maldonado, “Taking account of children’s emotions: anger and forgiveness in “renegotiated families“” [2009–2009] 16:2 Virginia journal of
social policy and the law 469, 470.
42
It is also said in the same provision, that “Respecting children’s rights should not jeopardise the rights of other parties involved“, which is in line with the basic legal principle that
rights of one can be exercised as long as they do not breach the rights of another.
43
Explanatory memorandum to the Guidelines, para 22, 17.
40
solved rather than avoided. Of course, it could be objected that sometimes
recourse to court offers more guarantees to a child44, but this should be carefully weighted in each and every case.
4.2. The activities of the European Union
Activities of the European Union regarding family mediation are necessarily
bounded by the limits of EU’s jurisdiction. Although the approach is changing and the EU is far more likely to be interested in regulating family law in
general as it has been two decades ago, substantive family law still remains out
of the European Union jurisdiction. This is reflected in the scarce sources of
European law that are relevant for this topic. However, a certain number of
documents mention mediation in regards to family law, nevertheless, without
elaborating any details.
Green paper on alternative dispute resolution in civil and commercial law45
does not refer in detail to family mediation, neither has it provided analysis
the participation of children in such proceedings. It is only stated in Paragraph 48 that political leaders are aware of the key role that ADRs can play in
resolving cross-border family disputes, whether such disputes involve matters
relating to the exercise of parental authority (custody rights with regard to
children and rights of access to children), the distribution of family property or the setting of maintenance payments. Hence, the parties to the dispute
could therefore have recourse to ADRs before they even envisage the possibility of seizing a court, during the court proceedings or during the stage of
implementation of the judicial decisions.
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning
jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation
(EC) No 1347/200046 mentions the issues of mediation primarily in the context of the role and functions of national central authorities. In Paragraph 25
of the Preamble it is defined that central authorities should cooperate both in
general matter and in specific cases, including for purposes of promoting the
amicable resolution of family disputes, in matters of parental responsibility.
In regards to Article 55 on co-operation in cases specific to parental responsibility, it is stated that central authorities shall (among other, as mentioned in
Subparagraph e): facilitate agreement between holders of parental responsibility through mediation or other means, and facilitate cross-border cooperation to this end.
44
45
46
ibid. para 54, 23.
[2002] COM 196
[2003] OJ L338/1
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Irena Majstorović
Directive 2008/52/EC of the European Parliament and of the Council of 21
May 2008 on certain aspects of mediation in civil and commercial matters47 in
its Preamble (Paragraph 6) defines that mediation can provide a cost-effective
and quick extrajudicial resolution of disputes in civil and commercial matters
through processes tailored to the needs of the parties. Agreements resulting
from mediation are more likely to be complied with voluntarily and are more
likely to preserve an amicable and sustainable relationship between the parties. However, this Directive should now apply to rights and obligations on
which the parties are not free to decide themselves under the relevant applicable law. As stated in Paragraph 10 of the Preamble, these cases are particularly frequent in family law.48
The EU Agenda for the rights of the child49, considered a highly important
document regarding children’s rights, does not elaborate the issues of family mediation, but reiterates that family law disputes may have adverse effects on the wellbeing of children and that adequate provision of information
to children and parents about their rights under EU law and national law is
a prerequisite to enable them to defend their rights in family law litigation.
Also, the Agenda foresees that the European Commission, in cooperation
with member states, will develop and keep updated factsheets on EU and national legislation on maintenance obligations, mediation and recognition and
enforcement of decisions on parental responsibility, which can be read as an
incentive for the states to promote mediation procedures.50
The analysis presented confirms that legal sources regarding family mediation in general, and in particular regarding children’s participation in
such proceedings is satisfactory. Legal documents on the global and also at
the European level are numerous and sufficiently developed. Still, numerous
questions remain unanswered. To my mind, this is the main challenge for the
implementation of protection of children from discrimination in this field.
It is a common point as well that adopting legal documents, despite being a
complicated procedure, is merely a first step, since having a stable legal framework is not enough. This is exactly the phase that European legislation is at –
47
[2008]OJ L136/3
In Para 21 of the Preamble to this Directive, there is an important legal caveat: Consequently, if the content of an agreement resulting from mediation in a family law matter is not
enforceable in the Member State where the agreement was concluded and where the request
for enforceability is made, this Directive should not encourage the parties to circumvent the
law of that Member State by having their agreement made enforceable in another Member
State.
49
Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions – An EU Agenda for the Rights of the Child [2011] COM 60.
50
ibid 6.
48
adequate legal system, nevertheless with so many open questions regarding its
implementation, some of which shall be addressed in the following chapter.
5. Open questions of children’s participation in family mediation procedures – new challenges for non-discrimination
At this point, it is reasonable to subtract the systems in which the child does
not have any say whatsoever in family breakdown situations. This is by all
means a form of discrimination on the basis of age and such practices should
inevitably be changed. This is also advocated for by the legal documents, both
global and European. However, for the European legal sphere, open issues
remain mostly outside the legal arena. It is the question of implementation,
which would allow for children to be really no longer discriminated against.
The European code of conduct for mediators51 for instance, launched
with the assistance of the European Commission in 2004, sets a number of
principles to which individual mediators may voluntarily decide to commit
themselves, under their own responsibility, but children are not mentioned in
any of the principlesit, probably under the presumption that this is an already
resolved issue. To our mind, this is not the case and it is up to every state to
provide for adequate answers to the new questions.
Therefore, legal systems in which participatory rights of children are acknowledged and protected experience all kinds of problems, namely of different issues of implementation. In general, it can be said that children generally
want to take part in the mediation procedures. They want to express their
views, doubts, and fears. Allowing the child to participate in such a procedure
provides them not only with the feeling of dignity, but also of responsibility
to invest all efforts to realise the agreement. It is the issue of having a stable
and responsible union of family members, capable of sound communication.
On the other hand, children do not want to be pressured. They do not
want to be set aside, but they are not capable of making decisions binding for
the whole family and they should not be forced to. They must not be forced
to choose between the parents and neither the parents should be forced to
choose between the children. It is up to the mediator to assist the family members in achieving an agreement they shall respect and fulfil in the future. The
child should never be given a role he/she cannot understand nor play.
The decision of whether the child should participate at all and how precisely this should be put into practice is in the hands of adults. The mediator
and the parents should decide, after consultations with the child, on the scope
of child’s participation in the proceedings. At the level of principle, we cannot
51
<http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf>
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Irena Majstorović
argue for any exception to this rule. There are different ways of including the
child in the procedure, and they include among other: communicating with
the child at the beginning of the procedure, periodically including the child in
the procedure, actively including the child during the whole procedure, discussing with the child about the reached agreement, as well as including the
child in the last session with the aim of informing the child of the procedure.
It is of utmost importance that all communication with the child and the
procedure that includes children is undertaken in accordance with the principle of their best interest. Although as a principle children cannot be discriminated in mediation proceedings on the basis of their age and immaturity, modern societies should not tend to go too far in this new direction. As
already mentioned, we should not give the children more rights and hence
responsibilities than the children would have wanted. Namely, if we, to the
best of our abilities, try to secure that this procedural right of a child – the
right to have his/her opinion heard, is to be strictly respected in all cases, we
shall unfortunately depart from the paramount criterion regarding the child –
the best interest of the child. In accordance with Article 3 Paragraph 1 of the
UNCRC:
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.
Therefore, we should rethink this right, but not the obligation of a child.
Opinion of a child is not binding, and it should be taken into consideration
in accordance with the age and maturity of the child. If we persist in this path
of wrongly evaluating this right as an obligation, we shall do the children
wrong.52
6. Conclusion
Children’s rights are a universally important legal and social topic. The aim
of this contribution was to examine how the scope of a particular right of
a child – the right to express his/her opinion is to be tested in the specific
52
Judith S. Wallerstein conducted a twenty-five year-long longitudinal study on the impact
of divorce on children, concluding that the legal system has not succeeded in serving or protecting children’s interests and furthermore, that the children in her study, now adults, would
be astonished to hear that anyone in the legal community had considered their best interest.
Cited according to: Coley (n 19), 51. Although this is an American study, it could be well presumed that the results in Europe would be similar.
family law field of mediation, evaluating the scope of the principle of nondiscrimination.
As follows from the analysis, legal documents guaranteeing the right of a
child to participate in mediation are numerous and of significant importance,
both on the global, as well as on regional, European level. Hence, the normative aspect in general does not pose any further issues. The burning question
therefore is the aspect of implementation that is the concrete realisation of the
right to express child’s own views and consequently, not to be put aside and be
discriminated against on the basis of age and immaturity.
Modern societies in general witness the increasingly binding concept
of children’s rights. In regards the right to express his/her opinion, we have
come a long way in only several decades. In the past, it was beyond our wildest imagination that a child should be guaranteed the right to express his/
her views freely and that such an opinion should be relevant. Children were
systematically discriminated against in this area, and this can be explained
by almost complete ignorance of the fact that children are legal subjects and
should be treated as such. This of course does not annul the need and the obligation of the family and even wider, of the state, to protect its weaker members, and children in particular, but the latter should be given the opportunity
to have their voices heard in important family situations, such as the family
mediation procedures.
Nevertheless, the pendulum has slid in the other direction, sometimes also
to another end. Hence, there are new issues on the horizon that have to be reevaluated. It is time to try to stop the pendulum which slid from completely
ignoring children’s views to comprehension of the right to express the child’s
views as his/her duty or obligation, and to set the pendulum into balance,
guaranteeing that children’s rights are reconceived in a holistic unity, being all
to the welfare of the child.
•
•
•
•
•
What is the aim of family mediation and how does it influence children?
Which are the limitations for children’s participation in family mediation procedures?
Should the legal systems establish a particular age limit for participation, or is the
cumulative determining of age and maturity appropriate?
Which are the advantages of interdisciplinary approach and guaranteeing the participation of children in family mediation?
Is there any other possibility, which could be useful for the protection of the child’s
right to express his/her opinion?
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Irena Majstorović
Further readings
Casals, M.M. “Divorce mediation in Europe: An introductory outline” [2005] 9.2. Electronic journal of comparative law <http://www.ejcl.org/92/art92–2.pdf>
Family mediation in the European Union – Survey Report, European Network of National Observatories on Childhood Europe [2005] <http://www.childoneurope.org/
issues/family_mediation/family_mediation_childoneurope_2005.pdf>
Roberts, M. “Mediation in family disputes – Principles of practice” (third edition, Ashgate 2012)
Dowling, E., Diana E. “Promoting positive outcomes for children experiencing change in
family relationships” in S. Roffey (ed), Positive relationships: Evidence based practice
across the world (Springer 2012)
LIST OF RELEVANT LEGAL DOCUMENTS1
UNITED NATIONS DOCUMENTS
Charter of the United Nations (adopted 26 June 1945, entered into force 24 October
1945) 1 UNTS 1
Convention on the prevention and punishment of the crime of genocide (adopted 9
December 1948, entered into force 12 January 1951) 78 UNTS 277
Universal declaration of human rights (proclaimed 10 December 1948) GA resolution
217 A (III)) (UDHR)
Convention for the suppression of the traffic in persons and of the exploitation of the
prostitution of others (adopted 21 March 1950, entered into force 25 July 1951) 96
UNTS 271
Convention relating to the status of refugees (adopted 28 July 1951, entered into force
22 April 1954) 189 UNTS 137
Protocol relating to the status of refugees (adopted 31 January 1967, entered into force
4 October 1967) 606 UNTS 267
Convention relating to the status of stateless persons (adopted 28 September 1954, entered into force 6 June 1960) 360 UNTS 117
Convention on the reductions of statelessness (adopted 30 August 1961, entered into
force 13 December 1975) 989 UNTS 175
International convention on the elimination of racial discrimination (adopted 7
March 1966, entered into force 4 January 1969) 660 UNTS 195 (CERD)
Amendment to Article 8 of the International convention on the elimination of racial
discrimination (adopted 15 January 1992, entered into force 16 December 1992) GA
resolution 47/111
International covenant on civil and political rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR)
Optional protocol to the International covenant on civil and political rights (adopted
16 December 1966, entry into force 23 March 1976) 999 UNTS 171
Second optional protocol to the International covenant on civil and political rights,
aiming at the abolition of the death penalty (adopted 15 December 1989, entered
into force 11 July 1991) 1642 UNTS 414
International covenant on economic, social and cultural rights (adopted 16 December
1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR)
Optional Protocol to the International covenant on economic, social and cultural
rights (adopted 10 December 2008, entered into force 5 May 2013) GA resolution
63/117
Convention on the non-applicability of the statutory limitation to war crimes and
crimes against humanity (adopted 26 November 1968, entered into force 11 November 1970) 754 UNTS 73
International convention on the suppression and punishment of the crime of apartheid (adopted 30m November 1973, entered into force 18 July 1976) 1015 UNTS 243
The list contains the Oscola style data only regarding the documents mentioned in legal
contributions to the textbook, status as on 28 February 2014.
1
112
List of relevant legal documents
Convention on the elimination of all forms of discrimination against women (adopted
18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW)
Optional protocol to the Convention on the elimination of all forms of discrimination against women (adopted 6 October 1999, entered into force 22 December 2000)
2131 UNTS 83
Convention against torture and other cruel, inhuman or degrading treatment or punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS
85 (CAT)
Optional protocol to the Convention against torture and other cruel, inhuman or degrading treatment or punishment (adopted 18 December 2002, entered into force
22 June 2006) 2375 UNTS 237
International convention on the protection of the rights of all migrant workers and
members of their families (adopted 18 December 1990, entered into force 1 July
2003) 2220 UNTS 3 (CMW)
International convention for the protection of all persons from enforced disappearance (adopted 20 December 2006, entered into force 23 December 2010) 2715 UNTS
(CED)
Convention on the rights of the child (adopted 20 November 1989, entered into force 2
September 1990) 1577 UNTS 3 (CRC)
Optional Protocol to the Convention on the rights of the child on the involvement
of children in armed conflict (adopted 25 May 2000, entered into force 12 February
2002) 2173 UNTS 222
Optional Protocol to the Convention on the rights of the child on the sale of children,
child prostitution and child pornography (adopted 25 May 2000, entered into force
18 January 2002) 2171 UNTS 227
Optional Protocol to the Convention on the rights of the child on a communications
procedure (adopted 19 December 2011, enters into force 1 April 2014) GA resolution
66/138
Convention on the rights of persons with disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3 (CRPD)
Optional Protocol to the Convention on the rights of persons with disabilities (adopted
13 December 2006, entered into force 3 May 2008) GA resolution A7RES/61/106
National institutions for the promotion and protection of human rights (adopted 20
December 1993 by the GA resolution 48/134) (Paris principles)
UNESCO DOCUMENTS
Convention against discrimination in education (adopted 14 December 1960, entered
into force 22 May 1962) 429 UNTS 93
Protocol instituting a Conciliation and good offices commission to be responsible for
seeking and settlement of any disputes which may arise between states parties to
the Convention against discrimination in education (adopted 10 December 1962,
entered into force 24 October 1968)
List of relevant legal documents 113
GENERAL COMMENTS OF THE COMMITTEE ON THE RIGHTS OF
THE CHILD
General comment no. 1. (2001) – The aims of education, CRC/GC/2001/1, 17 April 2001
General comment no. 2. (2002) – The role of independent national human rights institutions in the promotion and protection of the rights of the child, CRC/GC/2002/2,
15 November 2002
General comment no. 3 (2003) – HIV/AIDS and the rights of the children, CRC/
GC/2003/3, 17 March 2003
General comment no. 4 (2003) – Adolescent Health and development in the context of
the Convention on the rights of the child, CRC/GC/2003/4, 1 July 2003
General comment no. 5 (2003) – General measures of implementation for the Convention on the rights of the child, CRC/GC/2003/5, 27 November 2003
General comment no. 6 (2005) – Treatment of unaccompanied and separated children
outside their country of origin, CRC/GC/2005/6, 1 September 2005
General comment no. 7 (2006) – Implementing child rights in early childhood, CRC/
GC/2005/7/Rev. 1, 20 September 2006
General comment no. 8 (2007) – The right of the child to protection from corporal
punishment and other cruel or degrading forms of punishment, CRC/C/GC/8, 2
March 2007
General comment no. 9 (2007) – The rights of children with disabilities, CRC/C/GC/9,
27 February 2007
General comment no. 10 (2007) – Children’s rights in juvenile justice, CRC/C/GC/10,
9 February 2007
General Comment no. 11 (2009) – Indigenous children and their rights under the Convention, CRC/C/GC/11, 12 February 2009
General comment no. 12 (2009) – The right of the child to be heard, CRC/C/GC/12, 1
July 2009
General comment no. 13 (2011) – The right of the child to freedom from all forms of
violence, CRC/C/GC/13, 18 April 2011
General comment no. 14 (2013) – The right of the child to have his or her best interests
taken as a primary consideration, CRC/C/GC/14, 29 May 2013
General comment no. 15 (2013) – Right of the child to the enjoyment of the highest
attainable standard of health, CRC/C/GC/15, 17 April 2013
General comment no. 16 (2013) – State obligations regarding the impact of the business sector on children’s rights, CRC/C/GC/16, 17 April 2013
General comment no. 17 (2013) – Right of the child to rest, leisure, play, recreational
activities, cultural life and the arts, CRC/C/CG/17, 17 April 2013
INTERNATIONAL LABOUR ORGANISATION
Convention concerning discrimination in respect of employment and occupation
(adopted 25 June 1958, entered into force 15 June 1960) (Convention no. 111)
114
HAGUE CONFERENCE FOR PRIVATE INTERNATIONAL LAW
Convention on the civil aspects of international child abduction (adopted 25 October
1980, entered into force 1 December 1983)
Convention on jurisdiction, applicable Law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children (adopted 19 October 1996, entered into force 1 January 2002)
Convention on the International Recovery of Child Support and Other Forms of
Family Maintenance (adopted 23 November 2007, entered into force 1 January 2013)
Protocol on the law applicable to maintenance obligations (adopted 23 November
2007, entered into force 1 August 2013)
COUNCIL OF EUROPE DOCUMENTS
Convention for the protection of human rights and fundamental freedoms (adopted 4
November 1950, entered into force 3 September 1954) ETS 005, as amended by Protocols Nos. 11 and 14, which entered into force 1 June 2010)2 (ECHR)
European convention on the repatriation of minors (adopted 28 May 1970, conditions
for entry into force: 3 ratifications) CETS no. 71
European Convention on the legal status of children born out of wedlock (adopted 15
October 1975, entered into force 11 August 1978) CETS no. 85
European convention on recognition and enforcement of decisions concerning custody of children and restoration of custody of children (adopted 20 May 1980, entered
into force 1 September 1983) CETS no. 105
European convention on the exercise of children’s rights (adopted 25 January 1996,
entered into force 1 July 2000) ETS no. 160
European social charter (revised) (adopted 3 May 1996, entered into force 1 July 1999)
ETS no. 163
Convention on contact concerning children (adopted 15 May 2003, entered into force
1 September 2005) ETS no. 192
Council of Europe Convention on protection of children against sexual exploitation
and sexual abuse (adopted 25 October 2007, entered into force 1 July 2010) CETS
no. 201
European Convention on the adoption of children (revised) (adopted 27 November
2008, entered into force 1 September 2011) CETS no. 202
European Convention for the prevention of torture and inhuman or degrading treatment or punishment (adopted 26 November 1987, entered into force 1 February
1989) CETS no. 126
The text of the Convention had been previously amended according to the provisions of
Protocol No. 3 (ETS No. 45), which entered into force on 21 September 1970, of Protocol No.
5 (ETS No. 55), which entered into force on 20 December 1971 and of Protocol No. 8 (ETS No.
118), which entered into force on 1 January 1990, and comprised also the text of Protocol No.
2 (ETS No. 44) which, in accordance with Article 5, paragraph 3 thereof, had been an integral
part of the Convention since its entry into force on 21 September 1970. All provisions which
had been amended or added by these Protocols were replaced by Protocol No. 11 (ETS No.
155), as from the date of its entry into force on 1 November 1998. As from that date, Protocol
No. 9 (ETS No. 140), which entered into force on 1 October 1994, was repealed and Protocol
No. 10 (ETS no. 146) had lost its purpose. cf. <http://www.conventions.coe.int>
2
List of relevant legal documents 115
European charter for regional or minority languages (adopted 5 November 1992, entered into force 1 March 1998) CETS no. 148
Framework Convention for the protection of national minorities (adopted 1 February
1995, entered into force 1 February 1998) CETS no. 157
Convention for the protection of human rights and dignity of the human being with
regard to application of biology and medicine: Convention on human rights and
biomedicine (adopted 4 April 1997, entered into force 1 December 1999) CETS no.
164
Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine,
on the Prohibition of Cloning Human Beings (adopted 12 January 1998, entered
into force 1 March 2001) CETS no. 168
Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin (adopted 24 January
2002, entered into force 1 May 2006) CETS no. 186
Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Biomedical Research (adopted 25 January 2005, entered into force 1 September
2007) CETS no. 195
Additional protocol to the Convention on human rights and biomedicine concerning
genetic testing for health purposes (adopted 27 November 2008) CETS no. 203
Recommendation No. R (98) 1 of the Committee of ministers to member states of the
Council of Europe on family mediation (adopted 21 January 1998)
Recommendation 1639 (2003) on family mediation and gender equality (adopted 25
November 2003)
Guidelines on child-friendly justice (2010) (adopted 17 November 2010)
EUROPEAN UNION DOCUMENTS
Charter of fundamental rights of the European Union, [2010] OJ C83/389
Treaty on the European Union [2012] OJ C326/13
Treaty on the functioning of the European Union [2012] OJ C326/47
Council directive 2000/43/EC of 29 June 2000 implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin (Racial equality
directive) [2000] OJ L180/22
Council directive 2000/78/EC of 27 November 2000 establishing a general framework
for equal treatment in employment and occupation (Employment equality directive) [2000] OJ L303/16
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction
and the recognition and enforcement of judgments in matrimonial matters and
the matters of parental responsibility, repealing Regulation (EC) No 1347/2000
[2003] OJ L338/1
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004
on the right of citizens of the Union and their family members to move and reside
freely within the territory of the Member States amending Regulation (EEC) No
1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/
EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ
L158/77
116
Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006
on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (Gender equal
treatment directive) [2006] OJ L204/23
Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008
on certain aspects of mediation in civil and commercial matters [2008] OJ L 136/3
Green paper on alternative dispute resolution in civil and commercial law [2002]
COM 196
The EU Agenda for the rights of the child, Communication from the Commission to
the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – An EU Agenda for the Rights of the Child
[2011] COM 60
OSCE DOCUMENTS
Conference on security and co-operation in Europe final act (adopted 1 August 1975)
(Helsinki final act)
PART II: COMBATING CHILD DISCRIMINATION 117
PART II:
COMBATING CHILD
DISCRIMINATION
118
CHAPTER 5: Adultism and age-based discrimination against children 119
“Adults don’t treat us like humans. They treat us like babies who can’t talk.”1
CHAPTER 5:
ADULTISM AND AGE-BASED
DISCRIMINATION AGAINST CHILDREN
Manfred Liebel
Prof. Dr. Manfred Liebel, Director of the Institute for International Studies on Childhood and Youth at the International
Academy for innovative Pedagogy, Psychology and Economy
(INA gGmbH) and of the MA in Childhood Studies and Children’s
Rights at the Free University Berlin.
[email protected]
Not to be discriminated and to be protected from discrimination belongs to
inalienable human rights, also for children. The criteria by which discrimination is measured, for instance to be disadvantaged because of skin colour, sex
or social background, are defined in international human rights treaties and
in the same way found their way into the U.N. Convention on the Rights of
the Child (hereafter CRC). The fact that humans can experience discrimination on grounds of their age was only recognized very recently and here and
there has lead to corresponding requirements and legal policies. However,
so far in doing so, almost exclusively elderly people were envisaged. The following paper intends to explore why and in what ways persons can also be
discriminated against in specific ways for not yet being of age, that is to say
as children or ‘minors’, and how this is to be confronted. There are similarities to what is called ‘adultism’ and to what can be understood as a structural
background of age-based discrimination.
1. What is to be understood by discrimination?
In this paper2, discrimination in general is understood as “an action that treats
people unfairly because of their membership in a particular social group. Dis1
From a survey made in 2006 and 2007 by the ‘Children’s Rights Alliance for England’ and
the ‘National Children’s Bureau’ (Willow, Franklin & Shaw, 2007: 26).
2
Some parts of it are based on a chapter of my book: Children’s Rights from Below: Crosscultural perspectives. Basingstoke: Palgrave Macmillan, 2012(a). I would like to thank my
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Manfred Liebel
criminatory behaviours take many forms, but they all involve some form of exclusion or rejection” (United Nations, n.d. CyberSchoolBus). Often, a difference
is made between direct and indirect or institutionalized discrimination. The
term direct discrimination applies when a person or a group of persons is deliberately disadvantaged because of certain visible or attributed characteristics
and is thereby prevented from having equal status, equal access to resources,
equal access to decision-making, exercising rights in an equal manner, etc. Indirect or institutionalized discrimination applies when certain laws, regulations,
measures, social norms, etc. appear to be neutral and applicable to all persons
equally, but in fact have detrimental consequences on a person or group of people or such consequences are accepted in their implementation. Furthermore,
harassment counts as discrimination, when the dignity of a person is damaged
and an environment is created that is characterized by intimidation, hostility,
humiliation, degradation or insult. In view of its origin or cause, there should
be made a differentiation between individual and structural discrimination.
The latter can be understood as a form of structural violence or, in its extreme
form, as genocide, too.3 Social reality shows that a person or a group of persons
is never discriminated on one single ground only but always in a multiple way.
This often cumulates its harmful effects and is denominated as multiple, compound or intersectional discrimination (see Makkonen, 2002).
The discrimination ban, as a prohibition of arbitrariness, is mainly applied
to government action, but it can also be applied to the non-governmental
domain. The same happens with contracts between persons. The latter depends on the significance a society places on the controversial principle of
private autonomy and other basic rights. The discrimination ban, which was
initially conceived as a defence right, has also been understood as a provision
or participation right, for example when it is expected that the state or a local
authority spends money to tackle discrimination, i.e. to promote legal and
social equality.4
The characteristics defined in international human rights treaties5 that are
not allowed to lead to a disadvantage, apply to all humans irrespective of their
colleagues Rebecca Budde, Janica Hundacker and Rita Nunes for their comments and their
support to express my thoughts in English.
3
It seems to me important to conceptualize discrimination in a way that includes existential consequences including the destruction of the conditions for a human life with dignity
and its corresponding social identities (see e.g. Moses, 2010; Rashed & Short, 2014).
4
In Germany the duty to the corresponding implementation is, according to the jurisdiction of the German Federal Constitutional Court, subject to the “reservation of the possible,
in terms of what the individual can sensibly claim from society” (BVerfG, 1 BvR 2320/98
of 10.12.2004, paragraph no. 21). Available at: http://www.bverfg.de/entscheidungen/
rk20041210_1bvr232098.html
5
Within the framework of the UN, this includes the Universal Declaration of Human
Rights (1948), the agreements on civil and political rights (International Covenant on Civil
CHAPTER 5: Adultism and age-based discrimination against children
121
age. Until now it has not been expressly contemplated in these treaties that
discrimination can have as a primary reason the age of a person or a social
group.6 Where since recently reference is made to age as a possible reason for
discrimination, consistently older people are thought of, whose full participation in social life is intended to be protected and guaranteed.7 What is receiving little consideration is the fact that persons or social groups may be suffering discrimination or find themselves in a situation of dependency because of
either a low social or legal status in connection to their state of being a minor.
2. Discrimination against children
Although in some countries laws and regulations protecting elderly adults
from age-based discrimination8 have come into force during the last decade,
in hardly any country is the age and status of the children officially recognized as reason or cause for discrimination. On the contrary, many countries
have regulations and legal practices that sustain age-based discrimination of
children. For instance in the German General Equal Treatment Act (AGG)
which considers age-based discrimination, there are provisions explicitly allowing different treatment in relation to age, mainly with regard to young
persons. In this way, minimum age limits are required for determined jobs or
to start a professional education. The same rules in terms of employment contracts (for wage rates and payments) and for termination of the employment
contract. Such regulations are considered “objective, befitting and justified
by a legitimate cause”, are justified by the argument to that the integration of
young people in the work force shall be aided and to ensure minors’ protection (according to paragraph 10 ‘Justifiable differential treatment due to age’).
Another case is the legal sanctioning of wage differentials depending on
the age of the worker. In Australia, so-called ‘junior wage rates’ are currently
exempt from anti-discrimination legislation.9 Such practice is sometimes also
and Political Rights, 1966), as on economic, social and cultural rights (International Covenant
on Economic, Social and Cultural Rights, 1966), in addition to the specific conventions that
refer to particularly vulnerable groups of persons (i.e. the UN Convention on the Rights of the
Child) as well as optional protocols (i.e. on children in armed conflict).
6
The UN Human Rights Committee which has since been replaced by the UN Human
Rights Council recognizes age as a motive for discrimination by reference to the unspecific
characteristic ‘other status’, which in all human rights treaties follows the naming of specific
discrimination motives.
7
Corresponding provisions have found their way into, for instance, the anti-discrimination
directives of the European Union or the German General Equal Treatment Act (Allgemeines
Gleichbehandlungsgesetz: AGG, 2006).
8
One of the few examples of laws dedicated to age-based discrimination is the Australian
Age Discrimination Act of 2004; see Hemingway, 2004.
9
Junior wage rates are contradictory with Article 27 CRC as well as article 7 of the International Covenant on Economic, Social and Cultural Rights, which obliges State parties to
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Manfred Liebel
explicitly established in minimum-wage regulations. In the Netherlands, the
minimum wage is scaled according to age; there is no minimum wage at all
for workers below the age of fifteen (although various kinds of employment
are permitted from age thirteen) and a fifteen-year-old is entitled to only a
third of the full adult minimum wage, gradually increasing to the full adult
minimum wage at the age of 23. Similarly in Britain, the National Minimum
Wage Act (1998, chapter 39, 1, 2, c) does not apply to those below the age of
compulsory schooling (16); in 2009, the hourly minimum wage was £5.73
for an adult, £4.77 for those under twenty-two, and £3.53 for those under
eighteen. In these countries, therefore, age-based discrimination in wages is
sanctioned and regulated. In the Netherlands, this is explicitly justified by the
Ministry of Social Affairs with assumed productivity differences, increasing
young people’s chances in the labour market, the lower needs of young people compared to adults, and the need not to make work more attractive than
school to young people (Bourdillon et al., 2010: 177).10 Some international
conventions (e.g. the Convention 138 of the International Labour Organisation, in which minimum ages for different types of employment are set) may
possibly also have similar discriminatory effects against children.
The lack of consideration for the child-specific aspect of discrimination
in human rights treaties has occasionally led to the question whether human
rights are considered only as “adults’ rights” (Wintersberger, 1994). Notably, age-based reasons for discrimination are not mentioned explicitly in the
CRC. Article 2 reads as follows:
Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or
legal guardians race, colour, sex, language, religion, political or other
opinion, national, ethnic or social origin, property, disability, birth or
other status.
parents, legal guardians, or family members.
ensure that everyone has the right to “fair wages and equal remuneration for work of equal
value without distinction of any kind” (Human Rights and Equal Opportunity Commission,
2000: 61).
10
The justification of differentiated minimum wage rates by the Dutch Government is
in part questioned by the Netherland’s Trade Union Confederation (FNV) and considered
problematic in the Concluding Observations adopted in 2012 by the ILO Committee on
the Minimum Wage Fixing Convention Nr. 131 (see http://www.ilo.org/dyn/normlex/en/
f?p=1000:13101:0::NO::P13101_COMMENT_ID:3077156).
123
This article is often understood as a prohibition on discriminatory treatment
based on difference attributes amongst children, i.e. in comparison to other
children, however not in relation to adults (see e.g. Austria, 2004).
Although the CRC does not expressly name age as a possible motive for
discrimination, the UN Committee on the Rights of the Child,11 in its various Concluding Observations, mentioned age-based discrimination against
children and urged to its end. In particular, it anticipated a continuous checking of age limits according to their supposed protection purposes and their
appropriateness. Here the Committee is guided by two notions: regulations
concerning aspects related to the protection and development of children
and young people (for instance juvenile criminal law) should set higher age
limits, while the age limits in regulations that are connected to children gaining independence (for instance participation rights) should be checked as to
whether and how they could be lowered or whether age limits should apply
at all.12
Forms of discrimination that are age-based or legitimized by (minor) age
may be seen as the expression of an understanding of childhood under which
children are in principle inferior to adults and have a lower status or fewer
competences. It is a – not always consciously used – means, of conserving
the advantage of adults and to prevent or put off the equality of children. On
the one hand, the children’s need for protection must be served, on the other
hand, the supposed need to ‘civilize’ children through education or rules of
conduct shall be kept.
Age-based discrimination against children is also discussed under the
term ‘adultism’, which usually is understood as the abuse of power adults have
over children (Flasher, 1978: 514).13 It is defined as the “behaviors and attitudes based on the assumptions that adults are better than young people, and
entitled to act upon young people without agreement” (Bell, 1995: 1; see also
11
This Committee, that is currently made up of 18 independent personalities elected by
the UN General Assembly, evaluates the state reports required by the UN Convention on the
Rights of the Child on implementation of children’s rights and issues recommendations in
the form of the so-called Concluding Observations. In addition, it gives its views in so-called
General Comments, on fundamental issues of the praxis of children’s rights.
12
See General Comment Nr. 12 ‘The right to be heard’, 2009. Available at: http://www2.
ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-C-GC-12.pdf
13
According to Wikipedia (http://en.wikipedia.org/wiki/Adultism), the term ‘adultism’ was
first used in 1903 by Patterson Du Bois (1903: 17), and appears in French psychology literature
in 1929, describing the influence of adults over children. It was seen as a condition wherein a
child possessed adult-like “physique and spirit”, and was exemplified by “a boy of 12 and a girl
of 13 who had the spirit and personality of adults. [...] They were placed in institutions because
of stealing and prostitution. These forms of precocity lead the individual into difficulties and
should be recognized early in the development of the individual” (Courbon, 1933/2010: 355).
This definition was superseded by a late 1970s proposal that adultism is the abuse of the power
that adults have over children.
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Manfred Liebel
Gong & Wright, 2007). The term is also used to describe children and young
peoples’ oppression by adults, which can be compared to racism and sexism
(Roche, 1999). Similar terms, such as ‘adult privilege’, ‘adultarchy’, and ‘adultcentrism’ have been proposed as alternatives (Bonnichsen, 2011) to this type
of discrimination.
The little existing research on adultism up to now distinguishes different forms, such as ‘internalized adultism’ (Sazama, 2004), ‘institutionalized
adultism’ (Hernandez & Rehman, 2002), or ‘cultural adultism’. In a handbook
for community change it is stated that internalized adultism causes young people to “question their own legitimacy, doubt their own ability to make a difference” and perpetuate a “culture of silence” among them (Chekoway, 1998:
12). Institutionalized adultism may be apparent in any instance of systemic
bias, where formalized limitations or demands are placed on people simply
because of their young age. As we shall see in the following chapters, policies,
laws, rules, organizational structures, and systematic procedures each serve
as mechanisms to leverage, perpetuate, and instil adultism throughout society. These limitations are often reinforced through physical force, coercion or
police actions and are often seen as double-standards (Males, 1997). Cultural
adultism is a much more ambiguous, yet much more prevalent form of discrimination or intolerance towards children and youth. Any restriction or
exploitation of people due to their young age, as opposed to their ability, comprehension, or capacity, may be called ‘adultist’. These restrictions are often
attributed to euphemisms afforded to adults on the basis of age alone, such as
‘better judgement’ or ‘the wisdom of age’. This summarizes cultural adultism
similarly to the other versions of adultism as a generalized approach of agebased discrimination or a step towards it.
The discrimination of children connected to or justified by age has so far
been neglected in debates and research on children’s rights. The development
of the corresponding theory is very recent.14 Therefore, a typological differentiation between several variations of this kind of discrimination (or adultism)
should be initially undertaken. In my opinion, four categories of discrimination can be distinguished, which relate to children as individuals or as a social
group constituted by generational orders:
• measures against and punishment of undesired attitudes of children,
which are tolerated or seen as normal in adults;
• measures which are justified by real or assumed children’s special needs
for protection, but which in the end lead to further disadvantages to14
Age-based discrimination was a central issue for protest of the anti-authoritarian movement already in the 1960s and 1970s, but it was not related to human rights and did not led to
any explicit theory on age-based discrimination or adultism.
125
wards children, on the one hand because their scope of activity is limited, on the other hand because they are excluded from specific practices
and areas of social life;
• the limited access, in comparison to adults, to rights, goods, institutions
and services;
• the lack of consideration of the social group of children in political decision-making which might have negative consequences in the later life
of children and that of following generations.
The above-named types of age-based discrimination of children are found
almost all over the world. But they do not affect all children equally. The first
three, at least, are particularly common for children living in great poverty,
or are particularly ‘endangered’, whether due to the fact that their social behaviour is not in line with the prevalent perception of behaviour appropriate
for a child, or because they have comparatively few opportunities to know
their rights and insist on their application. Age-specific discrimination is often accompanied by discrimination on other grounds and strengthens. To
this regard, one should look out for discrimination that remains concealed
behind or combined with other kinds of discrimination (‘hidden’ or ‘intersectional’ discrimination) and which is particularly suffered by children who are
already disadvantaged and who can not draw attention to themselves or can
only do so in ‘conspicuous’ ways. Conversely, reference to age can serve as an
‘unsuspicious’ reason to cover up, for example, racist or sexist motives.
2.1. Discrimination owing to undesired behaviour
A common form of age-based discrimination of children is policies against,
and the punishment of, behaviour that is not desired in the case of children,
whilst it is tolerated or seen as adequate in adults. These types of behaviour
are not rejected and persecuted for being in breach with criminal laws or because they imply danger for other persons, but solely due to the fact that they
involve a ‘minor’. Amongst these so-called ‘status offences’ (CRIN, 2010) are
measures such as curfews and prohibitions to be in public places limited to
persons of particular ages, and punishment in the event that these are not respected. In a broader sense, it can also include repressive measures due to, or
to avoid, undesired or ‘insubordinate’ behaviour, ‘roaming the streets’, ‘vagabondage’, creating cliques, running away, ‘truancy from school’15, disobedience, collecting rubbish or other types of behaviour that are seen as ‘anti15
To this regard it is not a question of a violation of legal school attendance, but of the moral
degradation, lack of consideration for the cause and repressive treatment of children that don’t
attend school.
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Manfred Liebel
social’ or inadequate for children.16 ‘Anti-social’ is understood to possibly
even include types of behaviour in children that are usually understood as
‘normal’ for children, but that the adults find disturbing. This can be seen for
example in that ‘children’s noise’ is taken to be a disturbance of the peace and
therefore is the reason for prohibiting children from playing and ‘rampaging’
in yards and public places or to prevent child facilities from being built in
residential areas.
In Germany, in January 2010, Berlin was the first Federal State to put
‘child noise’ under state protection. In paragraph 6 of the law on protection
against noise pollution, the following paragraph has been newly introduced:
“Disturbing noises that come from children, as an expression of natural child
development and the preservation of development opportunities suitable
for children, are in principle socially appropriate and therefore acceptable.”
The necessity to modify the law was seen in a series of legal cases in which
the establishment of childcare centres in residential areas was objected to on
grounds of anticipated increases in noise pollution (see BBC News, 2010). In
May 2011, the Federal Immission Control Act (which is a rule applicable in
all of Germany) has been amended with a similar paragraph. In paragraph
22 it says that: “Noise which is caused by children in day care facilities, playgrounds or similar institutions as ball game playgrounds are normally not
harmful environmental effects. To assess this noise it is not permitted to use
immission limit data or guidance levels.”17
The outstanding phenomenon includes holidays ‘without children’ or even
the so called ‘children-free-zones’ include also certain restaurants, hotels or
entire health resorts. This is not always expressed as bluntly and clearly as
recently by an innkeeper in the German Federal State Bavaria: “I have done a
market analysis and it goes to show that there is a market niche.”18 However,
when this narrowing line excludes children but not pets, one should argue
16
For examples from different parts of the world see CRIN (2013), for instance the Antisocial Behaviours Orders (ASBOs) in UK and Ireland or the dusk-to-dawn curfews that are
differentiated according to age in Russia. Virginia Morrow (2002) sought out the perspectives
and reactions of 12–15 year-old children in England on the curfew. See also on this General Comment Nr.10 of the UN-Committee on the Rights of the Child (“Children’s Rights in
Juvenile Justice”): “It is quite common that criminal codes contain provisions criminalizing
behavioural problems of children, such as vagrancy, truancy, runaways and other acts, which
often are the result of psychological or socio-economic problems. It is particularly a matter of
concern that girls and street children are often victims of the criminalization. [...] The Committee recommends that the State parties abolish the provisions on status offences in order to
establish an equal treatment under the law for children and adults.”
17
Germany, 2013; available at: http://www.gesetze-im-internet.de/bundesrecht/bimschg/
gesamt.pdf (translation by the author).
18
http://www.focus.de/panorama/welt/tid-7707/kinderfreie-zone_aid_136211.html
127
for discrimination against children (for example in Great-Britain a real-estate
agency has developed a concept for a ‘child free village’).19
Measures against children and young people using public places often happen
in the context of privatisation and commercialisation of these spaces. Young
people, who do not conform to consumption-orientated behaviour, on the
one hand because they do not have sufficient financial means, on the other
because they want to use it for their own enjoyment or for communication
appropriate for them, are expelled and even hunted by the police. An example
from Germany is a police regulation, which first came into force in the city of
Chemnitz on 26 March 2009. Under the aim of protecting citizens from harassment and to ensure the protection of young people some public spaces are
closed to them. In specific young people are banned to meet in public places
because they are accused of consuming alcohol and drugs, beg ‘aggressively’
or behave in ‘uncontrolled’ fashion. A specific example is the one from football fields and playgrounds which may ‘only be used for their purposes’, not
with ‘dangerous objects’ and may not be entered at all after 10 pm (see Stadt
Chemnitz, 2011).
Corporal punishment (which can be added to this category of age-based
discrimination) as a form of correction against undesired behaviour is a social
practices that damage the physical and mental integrity of children and young
people or which put their health or even their life in danger one example .20
19
http://www.stuttgarter-nachrichten.de/inhalt.rentnerparadies-ein-dorf-als-kinderfreiezone.b882975b-5cce-47a1-a341-dee4e21e9d68.html
20
Countless examples can be found in the UN-Report on Violence against Children (UN,
2006). In one of the Manuals (CRIN, 2013) handed out by the Child Rights Information Network it is noted: ‘Most countries’ laws fail to protect children from violence in the same way
that adults are protected.’ All over the world, only 24 states have so far prohibited all forms of
corporal punishment against children (CRIN, 2009).
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Manfred Liebel
Another example is the use of electronic monitoring of the living space and
behaviour of children and young people in particular if they are in groups.
As an example, I would like to refer to the so-called Mosquito alarm system
(used in European countries and Australia) or Sonic Screen (used in the US
and Canada). This is an electronic device, used to deter loitering by young
people, which emits a sound with a very high frequency. The sound can typically only be heard by people below 25 years of age, as the human ability to
hear high frequencies deteriorates with age. The device is marketed as a safety
and security tool for preventing youngsters from congregating in specific areas. As such, it is promoted to reduce anti-social behaviour such as loitering,
graffiti, vandalism, drug use, drug distribution, and violence. They are sold
mainly for use outside shops and near transport hubs. Up to now, the device
is sold in the UK, Australia, France, Denmark, Italy, Spain, Germany, Switzerland, Canada and the USA. The Mosquito alarm system has created a controversy on the basis of human rights. Critics say that it discriminates young
people and infringes their human rights, while supporters argue that making
the Mosquito illegal would infringe the rights of shopkeepers who suffer business losses when ‘unruly teenagers’ drive away their customers. In fact, the
Mosquito is an indiscriminate weapon which succeeds only in demonising
children and young people and breaches their human rights.21
Minors, whose behaviour is deemed to be undesirable, are in many countries
threatened with arrest and other forms of imprisonment, although they did not
21
A UK campaign called ‘Buzz off ’ is calling for the Mosquito to be banned. The Children’s
Commissioner for England has criticised the device for indiscriminately targeting all children
and babies regardless of their behaviour. He describes such measures as “demonising children
and young people”, and creating a “dangerous and widening divide” between the young and
the old. The device was singled out for criticism in a joint report by children’s commissioners
for all parts of the UK, which formed part of a United Nations review of standards in the UK.
A report for the Council of Europe called for a ban in 2010, suggesting the use of the Mosquito
may breach human rights law. In January 2011, the device was banned on all Council and Partnership buildings in Sheffield (UK) following a successful campaign lead by the local Youth
Parliament (see: http://www.sheffieldtelegraph.co.uk/news/local/local-teen-wins-campaignto-ban-controversial-device-1-3104497). Sheffield is the largest city in the country with such a
ban in place. It was recognised by the UK Government in their ‘Positive for Youth’ document,
published by the Department for Education in January 2012 (http://media.education.gov.uk/
assets/files/positive%20for%20youth.pdf). This strategy paper acts to set out a new-approach
to cross government policy for young people aged 13-19. Although mentioned in the document, a national ban of the Mosquito device is not currently in the Coalition Agreement, or
part of current Government policy (for more information see: http://en.wikipedia.org/wiki/
The_Mosquito). Other measures with the purpose of preventing young people to gather in
shopping centres are playing classic music or using pink lights. They are justified by the police
as measures against ‘anti-social behaviour’ of young people. On examples from British cities
see: http://news.bbc.co.uk/2/hi/uk_news/england/nottinghamshire/7963347.stm and http://
www.bbc.co.uk/news/uk-england-birmingham-16307364
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infringe generally applicable criminal legislation.22 Once they have come into
contact with the police or the justice system, they are often denied legal aid and
they fall into a spiral of growing depreciation, stigmatization and disrespect to
the point of forms of lasting exclusion from social life.23 This can also be the case
for children who worsen their own parents or new step-parents in the family,
and are therefore denounced to the authorities as ‘asocial’ or as ‘rebellious’ in
order to get rid of them.24 Particularly affected are children that linger ‘on the
streets’ and who particularly easily, because of their dissentient or ‘disturbing’
way of life, come under suspicion for being criminal and a danger to others.
In extreme cases, the persecution goes as far as children becoming the target
of so-called death squads, which – occasionally upon the request of rich businessmen – dedicate themselves to ‘social cleaning’ of whole city districts and
seek the lives of children.25 Such practices are sometimes even abetted by state
legislation, for example by laws for ‘combating gangs’ which brand children and
young people, on their outfit alone, as a danger to public security and order. As
mainly those from poor districts are targeted, one can speak of a criminalization of poverty or of ‘hidden discrimination’.
When to this regard ‘children with difficulties’ are spoken of, the problems
of children are not usually addressed, rather the children are regarded as the
problem itself. ‘Conspicuous’ behaviour of children is exaggerated, removed
from its causes and used as a reason to justify certain measures, either to
guard against undesired behaviour, or to nip it in the bud. They are usually
justified by the argument that children are notably in need of education and
that one must ‘set limits’ for them. In fact, young people are thereby considered as human beings, who (still) lack ‘civilization’ and from whom one
can therefore fear particular disturbances or dangers. Their behaviour is measured throughout against benchmarks erected by adults and projected onto
children and young people. They are typical of an adultist and paternalistic
society. This also stands for the second form of age-based discrimination,
which is justified by the necessity to have to protect children.
22
In the case of younger children they can even be directed against adults or mentors, who
are seen as culpable by negligence.
23
Even in the guidelines of the United Nations on the Prevention of Youth Crime, ‘status
offences’ are expressly opposed due to their consequences of stigmatization, victimization and
criminalization (United Nations Guidelines for the Prevention of Juvenile Delinquency, 1990.
Available at: http://www.unhchr.ch/html/menu3/b/h comp47.htm
24
The stories of growing up in children’s asylums in post-war West Germany demonstrates
this, that although scandalized through the ‘asylum campaign’ (Heimkampagne) of the 1970s,
were only ‘officially’ admitted in recent years.
25
Examples can be found in particular in the Latin American countries of Brazil, Colombia,
Guatemala and El Salvador.
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2.2. Discrimination in the wake of child protection
Age-based discrimination does not always take place due to an intention to
harm children, but can be an unintended consequence of protection that is
deemed necessary. Children are undoubtedly dependent on care and protection from adults, and the younger they are the dependent they become. In
some cases, certain regulations are absolutely essential for the protection of
children, which are different to regulations for adults, for instance, to keep
children out of armed conflicts or to prescribe particular seats and safety belts
in motor vehicles. Usually – particularly in legal theory – it is presumed, that
age limits are the best way to achieve such protection for children. However
setting age-limits can, as can be seen in many examples, have ambivalent consequences.
Children are confronted with a perplexing array of age limits from when
they are allowed to make their own decisions – many of them with grave
consequences on their lives. The age at which they have a say in medical treatment, can get married, vote or can decide which religious beliefs they follow,
is regulated differently in each culture and at times even within the same culture. In some societies children already take on responsibility, which rejected
elsewhere as they are considered not to be suitable for children; in the latter
societies the protection of children can go as far as that they have hardly any
scope for their own decisions.
The examples of age limits for child labour and the exclusion of working
children from minimum wage laws show to what extent these regulations can
lead to the discrimination of children. It denies a whole age group the decision to earn money for themselves, or to contribute to the maintenance of
their family with their income, regardless of the conditions this occurs in.
Children who work and are younger than this age limit move among the
shadows of illegality, have to conceal their work and cannot enforce any rights
at work. This not only makes working children defenceless against exploitation and maltreatment or even subject to police persecution, but also impairs
their self-respect. Heedless of the reasons that prompt them to work, they are
transmitted the feeling that they are doing something wrong and that they
should be ashamed of it.26
Another example is the treatment of so-called disabled children. In many
countries, children with mental health difficulties can be locked up on grounds
26
This and further arguments against the ILO-Convention 138, in which the minimum age
for engaging in paid work is set, can be found in Bourdillon, White & Myers (2009). For reasons of self-protection and self-esteem, organizations of working children in Latin America
and Africa expressly call for a ‘right to work’ (Liebel, 2004 & 2013b). The jurists Karl Hanson
and Arne Vandaele (2013), who – in view of different interpretations of children’s rights – see
working children exposed to a ‘difference dilemma’, discuss different legal possibilities to confront the discrimination and disadvantage of working children.
131
which would not be applied to adults. In some places, children are confined to
mental health institutions without their views being taken into account where
this is not the case for adults. For instance, several US States allow parents
to voluntarily hospitalize their children to mental health institutions (CRIN,
2009: 18). In another context, parents medicate their children due to their
hyper activity considering it a disease.27
Limitations of children’s scope of activity due to their age are generally
justified in two ways. First, it is thought necessary to protect children from
themselves as it is deemed that they do not have the necessary skills to foresee
the consequences of their decisions.28 On the other hand it is admitted, that
children of the same age may have varying skills and setting a minimum age
is therefore a rough measure, but it is simply deemed effective, as it is easy to
control and implement. These arguments are based on the thought, that decisions about children are generally of adult’s domain, that adults are superior
to children in all issues. They also have a paternalistic understanding of protection because it is better off in the hands of adults, who best know what is in
the ‘best interest of the child’ (as stated in the CRC).
The protection of children becomes age-based discrimination where the
relative lack of experience or competence serves to justify particular regulations in order to extend the children’s dependency beyond the necessary measure or to limit their freedom or their scope of activity. In this way, the status
of children is subordinated and the inequality between adults and children
is solidified, thereby hindering children from trusting in their own competences and making use of their rights independently. In order to confront this,
at least the competences of children must be taken seriously and they must be
given opportunities to participate in decisions about how and from what risks
or dangers they are protected or how they want to mould their lives.
2.3. Age-based restriction of access to rights and services
The types of age-based discrimination mentioned above represent a violation of rights allocated to children under the CRC. They violate their human
dignity as well as the specific rights to gather peacefully and to express their
opinion. They are, however, also an expression of the fact that the rights of
27
Neither in the Eurochild & Inclusion Europe report (Latimier & Šiška, 2011) nor in the
recent UNICEF world report on disabled children (UNICEF, 2013), age-based discrimination
is addressed.
28
To this end it has been requested for years that children, for example, have an individual
right to a legal remedy for violations of their rights, which they can exercise in national and
international courts. Finally, a corresponding Optional Protocol to the CRC on a Communications Procedure was adopted by the U.N. General Assembly on 19 December 2011 which
includes individual complaints mechanisms for children. Available at: http://treaties.un.org/
doc/source/signature/2012/a-res-66-138-english.pdf
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children, in particular those rights which are meant to be for their protection,
are often built arbitrarily by adults or state institutions. In this case children
have little hope of influencing and exercising them as per their understanding.
One of the main intentions of the CRC is without a doubt to stop the arbitrary treatment and therewith also the discrimination against children. It
ensures the protection, advancement and participation of children as a matter
of entitlement. Yet in its treatment thereof it hardly offers any real opportunities to exercise their rights by themselves and to protect themselves from
violations of their rights. The fact that children can be discriminated purely
on grounds of their age is not explicitly considered in the CRC. Children’s
‘best interests’ are guaranteed and shall be of primary consideration (Art. 3),
moreover, their views must be considered ‘in accordance with the age and
maturity of the child’ in all matters concerning them (Art. 12). But as the
discretion and decision about this is still in the hands of adults, the floodgates
for age-based discrimination remain open.
In a study with children and young people between 12 and 17 years from
across England, Scotland and Wales (Gamelas, 2007) it was found that all of
them experienced age discrimination, including when trying to access emergency and support services, or using buses and shops. The participants were
keen to stress their determination to achieve equal rights for children and
young people. This was set within a wider commitment to equality: they did
not ask for or expect any special favours for the under 18 year-olds. Instead,
they believed that everyone had the right to be treated respectfully and fairly.
All children and young people had examples where they have been personally
discriminated against because of their age, including:
• calling an ambulance and being refused help because they were under
18;
• being discharged from children’s health services but not eligible for
adult services;
• being treated differently by the police – accused of making trouble, being ‘cheeky’, assumed that you are going to cause vandalism or be dangerous;
• teenagers not getting as much help at school for bullying as younger
children;
• not being allowed to open a bank account for EMA [educational maintenance allowance] money because under 16 (despite having all required identity documents);
• having coat sleeves checked by staff/security guards on the way out of
shops;
133
• being served after adults even if in the shop queue first;
• banned from supermarkets whilst wearing school uniform;
• having to leave bags outside shops and in cinema lobbies in case they
steal sweets;
• school children not allowed to sit down in a supermarket café to eat
breakfast – have to buy food and eat it outside;
• being banned from shops but dogs allowed to go in;
• restrictions on the numbers of children allowed into shops at any one
time – staff monitoring how many children can go into a shop;
• sign on shop saying ‘no children allowed’ but this is the only shop on
the housing estate;
• being followed around an electrical store whilst shopping for a camera
and treated suspiciously by staff;
• being told to get off buses or being driven past;
• being told that they must stand on buses because they haven’t paid an
adult fare;
• not being believed when asking for a child’s fare;
• inconsistency in what is a ‘child’ and what is an ‘adult’ (especially on
buses and at the cinema) but also in terms of taxes, joining the army
and voting age;
• not being trusted to pay for a meal in a restaurant (op. cit.: 4–5).
In most societies, decisions which have an impact on children’s lives are taken
in courts, family, school, and other spheres, in which they are not consulted
where adults would be (examples from U.K. are reported in Young Equals,
2009). Children’s rights are violated in justice systems around the world as a
result of indirect discrimination which comes about because of unequal access to courts and therefore to justice compared with adults. Children’s right
to be heard in judicial proceedings is often very limited, either because they
are expressly barred from court procedures until they reach majority or because the procedures are complex and not child-friendly. In many countries,
children are not heard in courts and are excluded to participate in decisions
affecting them in family courts.
Research shows that child poverty is linked to policy decisions and resource allocations made by states rather than the overall wealth of states and
yet children are rarely considered in the development of macroeconomic
policies where adults are. The effect of this failure is discriminatory because
children’s material needs and interests are subsumed in those of the household or family when they may be very different. Even in so-called welfare
states children’s services are often allocated a smaller portion of the budget
than the equivalent services dedicated to adults. For instance, the UK funding
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available for child and adolescent mental health services is only five per cent
of the mental health budget even though children represent 25 per cent of the
population. In other countries children are refused to use the ‘child allowance’
themselves or to receive income from their own work. Children are “the only
group in modern society that can not enforce any legally guaranteed claims to
available political and social resources. Even today, children in most welfare
states have hardly any direct individually enforceable rights to social services
and to their share in society’s resources” (Kränzl-Nagl, Mierendorff & Olk,
2003: 11).
This also applies when children are denied civil and political rights, for
instance (some examples are reported in CRIN, 2009):
• when children are prevented from participating in organized associations simply because of their age (e.g. trade unions);
• when children are excluded from consultative procedures with policy
makers for developing economic and social policy which are open to
adults, or when they are denied the general right to vote;
• when children are not formally granted nationality until they turn 18 or
children’s citizenship is dependent on that of their parents;
• when only parents can request that children be removed from religious
education classes, but children have no right to make such a choice (as,
e.g. is the case in UK);
• when unmarried ‘minors’ are not recognized as the parents of their
children (as, e.g. is the case in Colombia).
The reference to age and maturity as a conditional factor for the exercise of
individual rights, and the consideration of the children’s opinion is a doubleedged sword. It can be used to legitimise age-based discrimination of children – and until now this is the dominating practice – but it can also be used
to fight against age-based discrimination. What is required for this is not –
as has been common so far – to concentrate on what children can not do,
rather to look out for what they can do, and that the criteria is challenged by
which children’s competences usually are measured. This is at least time and
again requested by children’s rights activists and by the UN Committee on the
Rights of the Child under the reference to the principle of ‘evolving capacities’
set out in CRC Art. 5. According to this article, age limits that build a particularly popular gateway for age-based discrimination should no longer be
set, rather children should be entrusted and given the opportunity to exercise
their rights as early and to the extent possible.29
29
See for e.g. Lansdown (2005) as well as General Comment Nr. 12 (2009) of the UN Committee on the Rights of the Child.
135
2.4. Generational discrimination
Age-based discrimination can affect individual children or children as a social group or as a generation. In the latter case, one can speak of generational
discrimination, which is occasionally also described as a lack of intergenerational justice. One example is the lack of consideration for children as a social
group in political decisions, which has negative consequences on the future
life of children and even for following generations, such as the long-term consequences of nuclear energy or the impact of fossil energy production on the
environment and climate. Also decisions on fiscal policy, for instance national
debt, can have important negative consequences on following generations.
Children and young people can thereby – according to the experts of the
Austrian National Action Plan for Implementing the Rights of the Child (Austria, 2004: 110–111) – “be seen in the same way as a minority group, which
experiences a particular, multiple discriminatory treatment at the hands of
the ruling majority of adults. This form of (generational) discrimination can
apply to almost all areas of law (such as economic, social, cultural, civil and
political rights) as well as the child’s living environment (family, school, freetime etc.).”
The discrimination of subsequent generations can be understood as a form
of social inequality. It arises out of the circumstance that ‘minors’, due to their
legal and social status, have less opportunities to have an impact on political
decisions, even when they are affected by them. They also hardly have any
opportunities to take care of the implementation of the economic and social
rights themselves. This is further highlighted by the fact that children, even
in research, are conceived “as part of a collective unit which comprises adults
(parents) and children and not as autonomous claims makers themselves with
respect to societal resources (e.g. income)” (Olk, 2009: 188).
In order to fight generational discrimination, the Austrian federal government aimed at a ‘Generation Mainstreaming’ in its Action Plan (Austria,
2004). According to it, all political decisions shall be considered with regards
to their impact on upcoming generations. Like with ‘Gender Mainstreaming’ (by which gender perspectives were drawn into state actions), the consequences of political decisions shall be questioned in regards to children and
young people. Along with measures of ‘positive discrimination’ the Action
Plan argues for “equal opportunities and equal rights for all children as a
main political aim and issue for awareness-building measures”. This shall be
achieved by interrogating all intended political measures and their impact on
upcoming generations, considering generational discrimination in the official
periodic reporting on children’s environment and, encouraging the participation of children and young people in all affairs affecting them.30
30
In a general way this question is addressed in the ‘National Strategy of Sustainability Perspectives for Germany’ by the catch phrase ‘generational justice’, which the German govern-
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Taking generational discrimination and inequality as main conceptual
frame carries along the danger of interpreting socio-economic conflicts as
conflicts between generations. Moreover, it can “[distract] from the dramatically increasing inequality within all generations” (Butterwegge & Klundt,
2003: 8). In view of the importance generational differentiation retains in
relation to the lives of individuals this does not make such an approach useless. But it is necessary to place generational discrimination in the context
of socio-economic conditions. For instance, there is to pay heed to what extent and in what ways the neo-liberal transformation process of fiscal and
social policies can increase the inequality and justice deficit both between and
within generations and lead to complex patterns of discrimination. The same
stands for other policy areas in which age-based discrimination is generated,
for instance, in environmental policies.31
3. Conclusion: Growing awareness and challenges
The issue of age-based discrimination has long been side-lined in the debate
about human and children’s rights and has hardly been researched to date.
Likewise, the CRC itself concedes it little prominence.
Nevertheless, in some parts of the world, the awareness on and the opposition against age-based discrimination and adultism is growing. For instance,
in 2006 and 2007 a survey conducted by the ‘Children’s Rights Alliance for
England’ and the ‘National Children’s Bureau’ (Willow, Franklin & Shaw,
2007) asked 4,060 children and young people whether they had ever been
treated unfairly based on various criteria (race, age, sex, sexual orientation,
etc.). A total of 43% of British young people surveyed reported experiencing
discrimination based on their age, substantially more than in other categories of discrimination like sex (27%), race (11%), or sexual orientation (6%).
Age discrimination increased with age: 29% of those under 11 experienced it
compared with 64% of 16 and 17 year-olds (ibid: 8 and 21; see also the above
quoted study of Gamelas, 2007).
ment passed in 2002 (Bundesregierung, 2002). Ever since, its implementation has been documented and interpreted in official governmental progress reports. On the different meanings
of ‘generational justice’ and other affecting dimensions of justice for children see Liebel
(2013a).
31
In 2012, the German children’s rights organisation terre des hommes started a campaign
under the catch phrase ‘Children are liable for their parents’ for the recognition, development
and implementation of environmental children’s rights. In 1998 the German ‘National Coalition for the Implementation of the UN-Convention on the Right’s of the Child’ had already
defined children’s rights as “each child’s right to grow up in an intact environment, to live a
healthy life and develop positive future perspectives”.
137
From the US Crisis Prevention Institute the study on the prevalence of
adultism found a number of local youth-serving organisations addressing
the issue (Tate & Copas, 2003). For instance, a local program in Oakland,
California (Youth Together, 2008), describes the impact of adultism, which
“hinders the development of youth, in particular, their self-esteem and selfworth, ability to form positive relationships with caring adults, or even see
adults as allies”. Age discrimination is increasingly recognised as a form of
bigotry in social and cultural settings. An increasing number of social institutions are acknowledging the positions of children and youth as an oppressed
minority group (Young & Zasama, 2006: 95). A lot of young people are rallying against the adultist myths spread through mass media from the 1970s
through the 1990s (Movement Strategy Center/Young Wisdom Project, 2006;
Giroux, 2003).
Research compiled from two sources (a Cornell University nation-wide
study, and a Harvard University study on youth) showed that social stratification between age groups causes stereotyping and generalisation; one example
is the media-perpetuated myth that all adolescents are immature, violent and
rebellious (Young & Zasama, 2006: 94). Opponents of adultism and age-based
discrimination contend that this has led to growing numbers of youth, academics, researchers and other adults rallying against it, such as organising
education programs, protesting statements, and creating organisations devoted to publishing the concept and addressing it (ibid: 92). In the United States
of America the activities of the so-called Youth Rights Movement which is
composed, for instance, by ‘Americans for a Society Free from Age Restrictions’, the ‘National Youth Rights Association’, ‘Youth for Human Rights’,
‘Youth Speak Out Coalition’, ‘What Kids Can Do’, or ‘The Free Child Project’,
in the UK the ‘Article 12 Scotland’ illustrates this view. A German example is
the Berlin-based group ‘KinderrechtsZänker/KRAETZAE’. Notwithstanding
differences of the demands and forms of action, claimed for lessening and
removing various legal restrictions imposed to young people, for instance:
the voting age, drinking age, curfews, and mandatory school attendance. They
also favour easier access to legal emancipation for young people and greater
respect for children’s and young people’s rights (see Liebel, 2012b, for more
details and references).
Most of the initiatives and organisations centred in adultism and agebased discrimination are situated in wealthy countries of the minority world.
They emphasise changes in the child-adult relation in the sense of liberating
young people from restrictions imposed on them by the more powerful adults
or institutions dominated by adults. While some of them prioritise children’s
protection against discriminating practice by adults, others, in a more offensive way, try to reach a complete equality of rights and power between young-
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Manfred Liebel
er people and adults.32 Other dimensions of discrimination, for instance by
social disadvantage and inequality, are often less regarded. Contrastingly in
poorer countries of the majority world there are also initiatives and organisations that have age-based discrimination in mind but which emphasise the
problems which result from social inequality and poverty in a stronger way,
understood as a manifestation of structural violence. Examples for this are the
social movements of working children and adolescents, which have been on
the rise in Latin America, Africa and Asia since the 1980s (see Liebel, 2004:
19–37).
In the meantime, a growing number of governmental, academic, and
educational institutions around the globe are creating studies that respond
to many of the insinuations and implications of age-based discrimination or
adultism. The effects of adultism are analysed, for instance, by Mike Males
(2002) and Henry Giroux (2003). The topic has been addressed in liberation
psychology literature, as well (Watts & Flanagan, 2007).33 Simultaneously, research shows that young people who struggle against age-based discrimination and adultism within community organisations have a high rate of impact
upon these agencies, as well as their peers, the adults who work with them,
and the larger community to which the organisation belongs (see Zeldin et
al., 2000).
The fact that age-based discrimination has attracted more interest in recent times, might be due to the fact that the, until now, normal separation
and subordination of childhood has come into question, as a phase as well
as an age group. The boundaries between childhood and the adult world are
becoming largely indefinite and more questionable, as children (have to) take
on responsibilities earlier, win an impulse of competences and maybe even a
competitive advantage with new communication technology, as well as acquire and draw on socio-cultural maturity. All of this is accompanied by the
fact that the sequence of learning, working and consuming is subject to decreasingly defined life phases and that activities which were until now understood as typical of children or adults are increasingly meshed.
Such processes not only find expression in that children are clearly perceived as subjects and agents, but also reveal that they are hindered from obtaining a corresponding social status with further opportunities to act and
exert influence. This is reflected in a new sensitivity towards age-based dis32
The latter can be located in the tradition of the so-called ‘Children’s Liberation Movement’
active in the 1970s, principally in the United States of America (see, e.g., Farson, 1974; Gross
& Gross, 1977; for an overview see Liebel, 2012a: 37–39).
33
The ‘liberation psychology’ that has its roots in Latin America, differs from conventional
psychology in its emphasis on human rights and social equity. Exposing social injustice, creating just societies, promoting self-determination and solidarity with others, ending oppression
and healing its effects, are core tenets (see Martín-Baró, 1994; Burton & Kagan, 2005).
139
crimination, not least among children themselves as well as the research on
children’s rights, this represents a new challenge.
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Liebel, M. (2013a). Kinder und Gerechtigkeit: Über Kinderrechte neu nachdenken. Weinheim/Basel: Beltz-Juventa.
Liebel, M. (2013b). Do children have a right to work? Working children’s movements in
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Common Courage Press.
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Moses, D. (2010). Raphael Lemkin, Culture and the Concept of Genocide. In Donald
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Olk, Th. (2009). Children, Generational Relations and Intergenerational Justice, in J.
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142
Manfred Liebel
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Rights Alliance for England.
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www.youthtogether.net/unity/
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Decision_Making_Brochure.pdf
Note: All internet resources were proved on August 13, 2013.
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Define discrimination.
Distinguish and explain different concepts of discrimination.
Does it make sense to include harassment and genocide in the concept of discrimination? And why?
In which articles and in which wordings is discrimination in general and against
children particularly codified in the UN-CRC?
Is discrimination against children the same as age-based discrimination?
Is age-based discrimination contemplated in General Comments and Concluding
Observations of the UN Committee on the Rights of the Child, and in which ways?
Should age-based discrimination and adultism be understood as being the same?
How do you understand the relation between each other?
Please distinguish and explain different concepts and categories of adultism?
Please distinguish and explain different concepts and categories of age-based discrimination?
What is to be understood by “status offences”?
Can “junior wage rates” be legitimized by assumed differences between children and
adults?
In which way can child protection lead to discrimination against children?
What are the risks to understand “generational discrimination” as a category of discrimination?
Please explain possible relations between age-based and other features of discrimination against children.
Are there laws in your country on age-based discrimination? Do they include discrimination against children? Give examples.
Present practical examples of age-based discrimination in your country, for instance,
in daily life, by state institutions, or in the media.
How can such forms of age-based discrimination be addressed in child rights practice? Do you know examples from your country?
Do Concluding Observations on the State Reports of your country include age-based
discrimination?
•
143
Please reflect on the relations and contradictions between equality and difference in
the case of official regulations on discrimination against children.
Further readings
CRIN (2009). Guide to non-discrimination and the CRC. Child Rights Information Network; http://www.crin.org/Discrimination/CRC/index.asp
Flasher, J. (1978). Adultism, Adolescence 13(51): 517–523.
Gamelas, C. (2007). “We are all equal and that’s the truth.” Children and young people talk
about age-discrimination and equality. London: Children’s Rights Alliance for England; http://www.crin.org/docs/CRAE_UK.pdf
Makkonen, T. (2002). Multiple, compound and intersectional discrimination: bringing the
experiences of the most marginalized to the fore. Institute for Human Rights. Åbo Akademi University, Finland.
Morrow, V. (2002). Children’s rights to public space: Environment and curfews. In Bob
Franklin (Ed.). The New Handbook of Children’s Rights, 168–181. London/New York:
Routledge.
Young Equals (2009). Making the case: why children should be protected from age discrimination and how it can be done. Proposals for the Equality Bill. London: Children’s
Rights Alliance for England.
144
Urszula Markowska-Manista, Ewa Dąbrowa
CHAPTER 6:
DISCRIMINATION AGAINST ETHNIC AND
NATIONAL MINORITY CHILDREN IN EDUCATION:
SELECTED PROBLEMS OF EDUCATION IN EU
COUNTRIES WITH A FOCUS ON POLAND
Urszula Markowska-Manista Ph.D. – assistant Professor in
the Department of Basic Education and Scientific Secretary
at Janusz Korczak UNESCO Chair Interdisciplinary Studies on
Child Development and Wellbeing at the Maria Grzegorzewska
Academy of Special Education (Warsaw, Poland).
[email protected]
Ewa Dąbrowa Ph.D. – assistant Professor in the Department of
Basic Education in Maria Grzegorzewska Academy of Special
Education (Warsaw, Poland) and anti-discrimination coach.
[email protected]
1. Discrimination – an attempt to define the phenomenon
Discrimination (Latin discriminatio – differentiation) is a phenomenon which
is prevalent in the contemporary world. The everyday life of adults, youth
and children is replete with various conscious and unconscious forms and
dimensions of discrimination. Due to a certain characteristic, e.g. developmental period, sex, disability, sexual orientation, faith, world view, nationality
or ethnic affiliation, it equally affects particular social groups and individuals.
The socio-political changes taking place in the world have led to the legitimization of new rules in Europe – the rule of equal treatment1 and the rule of
1
Order of the Council 2000/43/WE of 29 June 2000 which implements the rule of equal
treatment of people regardless of their racial or ethnic origin, Law Journal. L 180 of 19 July
2000, p. 22.
CHAPTER 6: Discrimination against ethnic and national minority children in education 145
non-discrimination – allowing each person to lead a dignified life – without
exclusion or marginalization.
The United Nations has launched a fight against inequalities and discrimination by accepting and realizing Millennium Development Goals. Also the
European Community has engaged in the promotion of building a society
free from discrimination in all basic spheres of social life.
Observing the transformations mentioned above it is worth answering the
questions: What is discrimination? What are its sources? What are its mechanisms?
Discrimination affects each and every person as it has always been and
will be present in the space in which people live and function. Thus, it affects
educational, social, economic, political, legal, cultural as well as a number of
other dimensions of human life.
Discrimination manifests itself in a socializing (stereotypification of social
roles), customary (acceptance by the society of thought patterns referring to
the role and the manner of judging particular sexes), religious, conceptual
(by preserving certain social patterns, commercial (repeatedly violating the
dignity of a child, woman and man) and professional dimension.
The typical traits which can become the reason for discrimination are: skin
colour, social background, ethnic background, nationality, birth, age, gender,
sexual orientation, disability, appearance, faith/ religion, or lack thereof, social status, world view and material situation.
In the dictionary of terms developed in Poland within the project of the
Office of Government’s Agent for Equal Treatment “Equal Treatment – a
Standard For Good Governance”, discrimination is defined as “treating certain individuals or social groups in a different way, usually less fair, from other
individuals or groups. It is based on prejudice and labelling”.2 The same publication notes a wide rage of meanings of the term discrimination, where it is
defined as:
• unjustified differentiation of a situation or an individual’s rights;
• unequal treatment, legally ungrounded and unjustified by objective
reasons3.
According to the records included in one of the Polish reports devoted to
discrimination the term signifies reduced opportunities to access social goods
(education, professions, wealth etc.), due to affiliation to a group being a sub-
2
Słownik pojęć: Sieć równości. Portal o tolerancji i równym traktowaniu. http://www.
siecrownosci.gov.pl/slownik-pojec/art,19,dyskryminacja.html. Accessed 28 Feb 2014.
3
Ibidem.
146
ject of a stereotype, without taking into account individual dispositions or
merits (Krajobraz dyskryminacji I, 2003: 30).
The authors of the document highlight other meanings of the term, drawing attention to their wide range. Hence, discrimination can be perceived as:
• prolonged, systematic and unjust actions which limit the possibility to
meet the needs and achieve standards valued in a particular culture;
• unjust treatment of individuals or social groups by refusing them participation in particular spheres of life, privileges, power, based only on
an unfavourable attitude and prejudice due to their real or alleged traits;
• limited access to social goods (education, profession) due to affiliation
to a group being a subject of a stereotype, with disregard to true dispositions (Krajobraz dyskryminacji I, 2003: 30).
It is significant that on a legal level such wording of the definition of the term
is avoided. It is cited in the context of types of discriminatory behaviour which
can be encountered in life. The law differentiates between direct discrimination, indirect discrimination and harassment (including sexual harassment).
This approach is present both in international and Polish law. Hence, the “Act
of 3 December 2010 on the implementation of selected European Union regulations concerning equal treatment” states that direct discrimination is a situation in which “a physical person, regardless of sex, race or sexual orientation
is treated less favourably than another person is, was or would be treated in
a similar situation”, while indirect discrimination is a state in which, on the
basis of prerequisites mentioned above, “as a consequence of an allegedly neutral regulation, employed criterion or undertaken action there exist or might
exist unfavourable disproportions or a particularly unfavourable situation for
the person in question, unless the regulation, criterion or action is objectively
justified due to a goal which is in accordance to the law and which is to be
achieved, and the means serving to achieve this goal are right and necessary”
(Pawlęga, 2005: 14).
There are three mechanisms which lay at the foundations of discrimination; however they are not always conscious for an individual:
• a restricted attitude towards the actual human diversity which is the
absolute point of reference in the description of a human being (every
person who goes beyond is perceived as “different”, “alien”);
• a dogmatic attitude to cultural norms as unambiguous and objective
criteria of ordering the reality;
• dissemination of stereotypes and prejudice in a society (Pawlęga, 2005:
14).
What is also significant are the social divisions and the hierarchical structure of the society which contribute to a differentiated access to resources and
means.
The aforementioned typology refers to the character of discriminatory actions, yet it ignores the prerequisites which are determinants of discrimination. There is an extremely high number of such prerequisites. They are: age,
sex or disability, to name just a few. For the purpose of this paper the problem
of discrimination will refer to the discrimination against ethnic minority children, refugee children and re-emigrant children. As the authors of the report
notice “The training for prejudice and discrimination has various cultural
types of conditioning depending on the social group affected by discrimination. It is shaped as a result of socialization and, as a rule, begins already in
childhood. The nature of affect involves its high contagiousness, i.e. easy and
unconscious spread to people remaining in close contact” (Pawlęga, 2005: 14).
Discrimination manifests itself in a number of ways and has various faces.
It takes place on many levels and assumes varied forms. The symptoms of discrimination can take both a direct and indirect form; however, the concept of
indirect discrimination is a confirmation of a privileged state of a particular
group or community.
There is no doubt that discrimination is a threat to various social groups.
Among them are ethnic minorities, migrants, and more increasingly re-emigrants. As stated in the report of The European Union Agency for Fundamental Rights of 2011, “Ethnic discrimination is still a sad reality everywhere
in EU, whether in the field of health care, education, employment or living
conditions”4. Such a state is confirmed by Eurostat research on discrimination which indicates that discrimination on ethnic background is a frequent
phenomenon in European societies.5 What is the situation of children in this
perspective?
2. Discrimination against children in Europe
An analysis of existing international regulations concerning the prevention of
discrimination among children refers to general legal regulations. The basic
document is “The Convention on the Rights of the Child”, which includes:
“Article 2:
4
UE report: discrimination on ethnic background is still an unresolved problem. http://
www.lex.pl/ko/czytaj/-/artykul/raport-ue-dyskryminacja-na-tle-etnicznym-to-wciaz-nierozwiazany-problem. Accessed 28 Feb 2014.
5
Dyskryminacja w UE w 2012, EUROBAROMETR: http://ec.europa.eu/public_opinion/
archives/ebs/ebs_393_fact_pl_pl.pdf. Accessed 27 Feb 2014.
148
Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or
legal guardian’s race, colour, sex, language, religion, political or other
opinion, national, ethnic or social origin, property, disability, birth or
other status.
parents, legal guardians, or family members.”6
In use are also regulations formulated in basic documents devoted to human
rights as well as additional documents, including: The Resolution on the protection of children and their rights from 1997, the European Convention on
the implementation of children’s rights formulated in Strasburg on 25 January
1996. A special group is the group of ethnic minority children, immigrant
children (including refugees) and re-emigrant children. As stated in “The
European Council Recommendation 1596 (2003), The situation of young migrants in Europe”, “1. Young migrants represent a varied and heterogeneous
group. They include children, young women and young men who have fallen
prey to human traffickers or who have been smuggled into a country in the
hope of escaping poverty, persecution or a situation of generalised violence;
young people who have entered European countries through legal channels
for study, work or family reunion; and second-generation migrants who are
born in the host country. Many of them come from non-European countries;
but many others are Europeans who move, legally or illegally, from one member state to another. They are immigrants for some states and emigrants, or
returning emigrants, for others.”7
This group is referred to in the direct regulations: Recommendation CM/
Rec(2007)9 of the Committee of Ministers for member states on aid programs
for migrant minors without guardians (approved by the Committee of Ministers on 12 July 2007 at the 1002 meeting of the Ministers’ Deputies), Recommendation CM/Rec(2008)4 of the Committee of Ministers for member
states on the integration of migrant children and children with immigrant
background (approved by the Committee of Ministers on 20 February 2008
6
Convention on the Rights of the Child signed by the UN General Assembly on 20 November 1989.
7
Sytuacja młodych migrantów w Europie. Zalecenie Rady Europy Zgromadzenia Ogólnego1596 (2003). Developed on the basis of: Jaros P., Prawa dziecka. Dokumenty Rady Europy, Rzecznik Praw Dziecka, Warszawa 2012, website: http://www.brpd.gov.pl/uploadfiles/
publikacje/prawa_dziecka_dokumenty_rady_europy.pdf. Accessed 28 Feb 2014.
Recommendation 1703 (2005), Protection and support for children without
guardians applying for an asylum approved at the 1018 meeting of the Ministers’ Deputies), but also in indirect regulations – i.e. regulations concerning
the rights guaranteed to parents or legal guardians. In the case of employees’
right to freedom of movement, an employee’s child can settle with the parent
in another European Union state. In the case of family reunion regulations
(the 2003 Directive on family reunions) children have the right to remain
in the receiving state and to be granted access to the fundamental spheres of
social life (including education).
As far as the applications for the status of a refugee are concerned, children’s rights are treated with priority. The right to protection is granted to
individuals with regard to their situation. The 2003 European Council Recommendations on children in armed conflicts aim at:
• answering problems such as violence against children, the impact of
armed conflicts on children, children trade, etc.;
• taking into consideration the rights and needs of children within particular spheres, such as education and health care;
• taking into consideration the rights of children in all programs and
projects financed by the European Community.
An analysis of reports developed on the European ground allows for a statement that discrimination is most frequently directed against Roma children.
Europeans indicate a negative attitude towards Roma people and the phenomenon of bad relations in peer environment with Roma children. The
best situation is in Poland and Lithuania; while the most critical situation is
in Czech Republic and Slovakia (Frakas, 2007: 13). Additionally, as results
from the data presented by the FRA Director Morten Kjaerum,: “on average,
around 20% of Roma aged 16 and above could not read and write, in contrast
to less than 1.5% of their non-Roma neighbours:
•
•
•
8
only one out of two Roma children attended pre-school or kindergarten, compared to around three out of four of their non-Roma neighbours;
in some countries up to 35% of Roma children aged 7–15 were not attending compulsory school;
and only about 15% of young Roma had completed any form of uppersecondary general or vocational education, compared to around 64%
of their non-Roma neighbours”8.
Kjaerum M., Exclusion and discrimination in education: the case of Roma in the European Union. http://fra.europa.eu/en/speech/2013/exclusion-and-discrimination-educationcase-roma-european-union. Accessed 1 Mar 2014.
150
A report devoted to discrimination in Europe notes that discrimination refers to children from migrant background and is manifested in a gap in the
sphere of motivation and achievements of students (Zick, Küpper, Hövermann 2011). These are confirmed by international PISA research.9 Minority
children achieve lower results than their peers without migrant experience in
the sphere of reading with understanding, mathematical thinking and science
thinking. The research done in Germany revealed that the problem concerns
not only first generation children, but also children from the second and third
generation. What is more, these children less frequently continue education
at secondary level. The authors of the document “Education for Migrant,
Minority and Marginalized Children in Europe” stress: “the structure of the
educational system, with the practice of ‘tracking’ at the forefront; segregation within and between neighbourhoods and schools; direct and indirect
discrimination in the classroom and playground by staff and other students,
including bullying and lower teacher expectations; and curriculum bias. In
addition, ‘home-based’ factors include language deficits, parenting styles, and
in some cases social, cultural and religious practices. Broadly speaking, these
can all be considered as problems of inclusion.” (Brind, Harper, Moore, 2008:
5).
In recent years attention has also been drawn to the problem of re-emigrant children, deprived of parental care and facing problems mainly in the
sphere of education. There have been initial reports in this area which indicate
the basic problems that children encounter. Among them the most frequently
listed are language problems, adaptation difficulties, remaining without parental care due to parents’ employment abroad.
In the reports of non-government organisations and institutions whose
aims are directed at the well-being of children and youth there appear questions essential for the present social integration policy:
• about non-discriminatory education practices;
• about anti-discrimination education of children and youth in culturally
diversified environments;
• about cooperation of schools with minority communities in culturally
diversified environments;
• about the chances and barriers of education of minority and majority
students in the conditions of multiculturalism;
• about the equality of educational chances of refugee children, repatriate
students and majority students;
• about practical solutions in counteracting children discrimination
through education, including intercultural education.
9
PISA – Untapped Skills: Realising the Potential of Immigrant Students, OECD, 2010.
3. (Non-)discrimination against children with migrant experience
and from national and ethnic minorities in Poland
In Poland, the group of minority children, immigrants and re-emigrants is
not numerous. The estimated data concerning the number of immigrants and
individuals with migrant origin is to be found in the last Census. As results
from the Census, this group constitutes 0.15 per cent (57 500) of the population. The most numerous is the group of Ukrainians (24 per cent of the
total number), then Germans (about 9 per cent), Russians (about 8 per cent),
Belarusians (about 7 per cent) and Vietnamese (about 5 per cent). 674 900
people were born outside Poland. Nearly one per cent of the population (383
200) indicate that both of their parents were born abroad. Taking into consideration the parents’ country of origin and the geopolitical changes one can
suppose that they are displaced individuals (including repatriates). The data
does not include temporary immigrants who constitute the most numerous
group, as well as individuals without a residency permit. There is a slightly
more numerous group of national and ethnic minorities in Poland. In the
Census 809 thousand people declared to be of Silesian nationality, 228 thousand – of Kashubian, 109 thousand – German, 48 thousand – Ukrainian, 47
thousand – Belarusian, 16 thousand – Roma, 13 thousand – American and 10
thousand – Lemko; which constituted 3.81 per cent of the total population.10
The numbers included in the Census can only be treated as approximate
data as they do not comprise all people remaining on the area of Poland and
refer to unverified declarations of individuals participating in the Census. The
data do not take into consideration the number of children. The percentage
of migrant children and of migrant origin, children from ethnic and national
minorities as well as migrants can be estimated on the basis of data available
in the System of Educational Information, on the website of the Ministry of
National Education concerning minority language education. The data indicate that in 2012, 62,060 students were learning the language of minority
groups in Polish preschools and at all levels of schools. Most frequently these
were students learning German, Kashubian, Belarusian and Ukrainian languages; the least frequently chosen language was the language of Roma minority (only 1 person).11
In Poland, separate anti-discrimination regulations referring to migrant
children (including refugees), minority children and re-emigrant children do
not exist. The regulations pertaining to the aforementioned groups refer only
to the sphere of education within the realization of universal and equal access
to education for all school-age children and youth.
10
National Population and Housing Census 2011: http://www.stat.gov.pl/cps/rde/xbcr/gus/
PUBL_lu_nps2011_wyniki_nsp2011_22032012.pdf. Accessed 10 Jan 2014].
11
Data according to the System of Educational Information. Accessed 30 Sept 2012.
152
An analysis of legal regulations indicates that already the Constitution of
the Republic of Poland in article 35 guarantees Polish citizens belonging to national and ethnic minorities the freedom to preserve and develop their own
language, to preserve customs and traditions and develop their own culture,
including the right to create their own educational, cultural institutions as well
as institutions which serve to protect religious identity and to participate in the
settlement of matters concerning their cultural identity. “1. The Republic of Poland guarantees Polish citizens belonging to national and ethnic minorities the
freedom to preserve and develop their own language, to preserve customs and
traditions and develop their own culture. 2. National and ethnic minorities have
the right to create their own educational, cultural institutions as well as institutions which serve to protect religious identity and to participate in the settlement of matters concerning their cultural identity”.12 The Constitution (art. 48)
guarantees all parents in Poland the right to raise children in the spirit of their
own culture and religion. Moreover, the legislative act on national and ethnic
minorities and regional languages regulates matters relating to the preservation
and development of national and ethnic minorities’ cultural identity as well as
the preservation and development of a regional language. Another document:
Education Act, along with execution acts, regulates issues concerning education
of children and youth belonging to national and ethnic minorities as well as
communities using a regional language.
In line with the Convention on the Rights of the Child and the Constitution of the Republic of Poland (art. 10 Act 1), every child has the right to
education. All children residing in the territory of the Republic of Poland, regardless of their legal status, are subject to compulsory education. Hence, the
obligation refers also to foreigners who reside in Poland, legally or illegally.
“In article 70 of Act 1 the Constitution of the Republic Poland guarantees every person the right to education and specifies that education is compulsory
until the age of 18. The term “every person” refers also to a non-citizen of Poland who resides in the territory of Poland. The right to education means that
no person who wishes to learn, and is not over 18 years old, can be refused
this right, and the organs of the state have an obligation to facilitate access to
12
Source: Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. (Dz. U. z dnia
16 lipca 1997 r.) (the Constitution of the Republic of Poland of 2 April 1997). (Law Journal
of 16 July 1997). The constitutional rule cited above is developed in two legislative acts: The
Legislative Act of 6 January 2005 on national and ethnic minorities and regional languages
(Law Journal from 2005 pos. 17 no 141 with further amendments) as well as Education Act of
7 September 1991 (Law Journal from 2004 No 256, pos. 2572, No 273, pos. 2703 and No 281,
pos. 2781) and the order of the Minister of National Education of 14 November 2007 on the
conditions and methods employed by preschools, schools and public institutions to perform
tasks enabling the preservation of the sense of national, ethnic and language identity of students belonging to national and ethnic minorities and communities using a regional language
(Law Journal 2007.214.1579).
education. Lack of knowledge of the Polish language or lack of documented
proper education cannot be the reason for refusal.” (Klaus, 2006: 55–56).
Education plays the key role in overcoming difficulties faced by minorities
which try to preserve their identity and traditions. “In spite of the fact that
national and ethnic minorities’ education is an integral element of the Polish
system of education, the unique educational needs and conditions in which
minority students live and learn require the employment of diversified legal
solutions which can enable the full realization of educational rights they are
entitled to” (Machul-Telus, Majewska, 2012: 9).
National and ethnic minority children, as well as children using a regional
language, including Belarusian, Armenian, Roma and foreign children (also
refugee children), according to Education Act of 7 September 1991 and relevant execution acts13 can benefit from, among others:
• additional free Polish language lessons, in the number of five hours a
week, additional compensatory lessons;
• education in the field of the language and culture of the minority group
or country of origin;
• free textbooks;
• cultural assistants (Roma assistant).
Schools with native language of instruction are important for each national
minority (Łodziński, 2005). Hence, national and ethnic minority children’s
education can be organised, among others, at schools or institutions with additional minority language or regional language education, conducted in the
form of separate lessons with Polish as the language of instruction, except
lessons of a minority or regional language.
Based on the 2007 order of the Minister of National Education “§ 1.1 Preschools, schools and public institutions enable children from national and
ethnic minorities as well as communities using a regional language, referred
to in the Act of 6 January 2005 on national and ethnic minorities and regional
languages (Law Journal no 17, pos. 141 and no 62, pos. 550), to preserve and
develop the sense of national, ethnic and language identity by conducting: 1)
lessons in national or ethnic minority language, later referred to as “minority
13
The regulations are included in the Order of the Minister of National Education of 1 April
2010 on accepting individuals who are not Polish citizens to public preschools, schools, teacher
training centres and institutions, as well as the arrangement of additional Polish language lessons, additional compensatory lessons and education on the language and culture of the country
of origin, as well as in the Order of the Minister of National Education of 14 November 2007 on
the conditions and methods of performing by preschools, schools and public institutions tasks
enabling to maintain a sense of national, ethnic and linguistic identity of students belonging to
national and ethnic minority groups and communities using a regional language.
154
language”, as well as in a regional language; 2) classes providing education on
their own history and culture. 2 To enable students from national and ethnic
minorities as well as from communities using a regional language to preserve
and develop the sense of national, ethnic and language identity, including the
knowledge about their own history and culture, preschools, schools and public institutions can conduct lessons on the geography of the country whose
cultural area the national minority identifies with, as well as art classes or
other additional lessons”14.
It is necessary to point out that there are three governmental Strategies for
the Development of Minority Education: “Strategy for the Development of
German Minority Education”15, “Strategy for the Development of Lithuanian
Minority Education”16, “Strategy for the Development of Ukrainian Minority Education”17. On 11 February 2014 “Strategy for the Development of Belarusian Education” was approved. The strategy is the result of cooperation
between government administration and Belarusian minority organisations
and will be submitted for the approval of the Minister of Administration and
Digitalization and the Minister of National Education. “The Strategy for the
Development of Belarusian Minority Education in Poland” is the fourth document which undertakes the unique educational challenges for the particular
national and ethnic minorities in Poland, including minority children’s rights
to preserve identity and minority education.
The strategies mentioned above form educational regulations which are to
outline the directions of quality development in the area of supplementation
of didactic base and didactic staff training for the needs of minority education, as well as the pursuit of establishing bilingual schools and schools with
the language of the given national minority. The strategies reflect the needs
and expectations in the field of German, Lithuanian and Ukrainian minority
education and involve, among others, school net, minority education financing, educational content, curricula and textbooks, teachers education and
14
The Order of the Minister of National Education of 14 November 2007 on the conditions
and methods of performing by preschools, schools and public institutions the tasks enabling
to maintain a sense of national, ethnic and linguistic identity of students belonging to national
and ethnic minority groups and communities using a regional language (Law Journal of November 2007 pos. 1579).
15
Strategy for the Development of German Minority Education: http://www.vdg.pl/attachments/article/47/Strategia%20niemiecka%20-%20tekst%2012.%2003.%202007.pdf. Accessed
17 Oct 2013.
16
Strategy for the Development of Lithuanian Minority Education http://www.kuratorium.bialystok.pl/kuratorium2/jez_mniej/strategia/Strategia_rozwoju_owiaty_mniejszoci_
litewskiej_w_Polsce.pdf. Accessed 17 Oct 2013.
17
Strategy for the Development of Ukrainian Minority Education http://www.kuratorium.
waw.pl/files/f-2928-2-strategia.pdf. Accessed 26 Feb 2014.
training as well as the operation of methodology counsellors, issues regarding
the introduction of bilingual school certificates for bilingual schools.
3.1. Foreign children and education
As a rule, children have access to education in Poland. The right to learn one’s
own language and to preserve one’s culture is granted also to foreign children. Foreigners’ children – even if in the light of the law they reside in Poland illegally – in line with international agreements are granted the right to
free school education and additional, free Polish language lessons organised
for foreign children at school, as well as other compensatory classes. Schools
have an obligation to support students in preserving their national, ethnic,
religious identity, as well as preserving their language (Art. 13 of Education
Act18). Schools do not have an obligation to organise language lessons of the
country of origin of foreign children. However, they are obliged to grant access to rooms used for educational purposes if a cultural association or an
embassy of the country of children’s origin takes an initiative to organise language lessons.
Reports on cases of discrimination are seldom, both in the area of education, and in other spheres. According to data of the Children’s Rights Ombudsman from 21 December 2010, discrimination of foreign children from
countries outside European Union was not reported. There were reports from
foreigners remaining illegally in the Republic of Poland concerning access to
health care.19 This does not mean that there were not any difficulties related
to, e.g. education:
18
“Art. 13. 1. A school and a public institution enables students to preserve their national,
ethnic, religious identity, and in particular to preserve their language and their own history
and culture.
2. On application by parents the type of education referred to in act 1 can be conducted:
1) in separate groups, units or schools;
2) in groups, units or schools – with additional lessons of one’s history and culture;
3) in inter-school educational teams.
3. The Minister appropriate for the matters of education will define, in the form of an order,
the conditions and methods of performing by preschools, schools and public institutions
tasks referred to in act 1 and 2, particularly the minimal number of students for whom the
particular forms of education defined in act 2 are organised.
4. In educational-didactic work public schools ensure the possibility to preserve regional
culture and traditions.
5. The purchase of school textbooks and supplementary books used in students’ education
in the area necessary to preserve the sense of national, ethnic and language identity can be
financially supported from the budget of the state in the amount which is at the disposal of the
minister appropriate for the matters of education.” ( Education Act of 7 September 1991 (Law
Journal 1991 no 95 pos. 425).
19
According to data from Children’s Rights Ombudsman of 21 December 2010. from: M.
Pryczyńska, Dyskryminacja cudzoziemców w Polsce, Centrum pomocy prawnej im. H. Nieć,
12 April 2011, p. 23.
156
• maladjustment of school requirements to cultural and religious principles;
• problems with assessment and classification of students;
• parents’ reluctance to accept a foreign child to a particular class.
This problem is also indicated by the European Commission against Racism
and Intolerance (ECRI) which notes that, following reports from Polish
schools, there are cases of discrimination affecting mainly Roma and foreign
students, however in recent years the situation has been improving.20
The violation of rights and one’s behaviour which can be perceived as discriminatory affects children remaining in guarded reception centres for foreigners and concerns securing proper living conditions, or access to education or other services and goods.
The situation of Roma children is equally difficult. An illustration of this
can be separate classes arranged for Roma children as well as cases of referring
these children to special schools. As the document states: “The low rate of primary school attendance by Roma children is highly alarming. The program
for Roma community in Poland is not implemented with equal enthusiasm
by all mayors. Other historical minorities also have reasons to complain, e.g.
about the scope of implementation of the Legislation Act of 2005 concerning
national and ethnic minorities as well as regional languages and the legislation act on the Muslim community.”21
Various documents also indicate worse treatment of foreign children in
approved schools and placing children in guarded centres due to acts committed by parents. In 2013 there were six closed guarded centres in Poland.
Minors with parents, as well as minors without legal guardians, were placed
in such centres. These centres are monitored 24 hours a day by border guards,
surrounded by a 3 metre-high fence and the regulations and the rhythm of
everyday functioning are burdensome for children and evoke “prison” associations22. Children who were staying there did not attend lessons at school.
They usually had, in a limited form, the possibility to participate in classes
conducted on the area of the centre. Another negative aspect of remaining in
confinement is the derogatory nature of the place, lack of contact with peers
and living according to the standards of adults.
20
ECRI Report on Poland published on 15 June 2010, Council of Europe, Strasbourg 2010,
CRI(2010)18, p. 21: http://www.coe.int/t/dghl/monitoring/ecri/country-by-country/poland/
POL-CbC-IV-2010-018-POL.pdf. Accessed 28 Feb 2014.
21
Ibidem, p. 10.
22
Based on: Information on the state of realisation of the rights of individuals placed in
guarded centres for foreigners run by border guard, Ministerstwo Spraw Wewnętrznych,
Departament Kontroli, Skarg i Wniosków, Warszawa, January 2013. http://bip.msw.gov.pl/
download/4/15845/12-15-37KW378922DKSIWplik2.pdf. Acessed 20 Feb 2014.
In the 2012 project of the legislative act on foreigners there were no provisions for instruments which would protect foreigners’ children against placing them in guarded centres with prison-like conditions of living.23 It is necessary to stress that placing children in guarded centres causes unjustified
suffering and fear and violates children’s rights, including the right to protection. Moreover, the very placement of children – even for a short period of
time – in detention (other conditions of everyday functioning, isolation from
the outside world), can lead to irreparable damage in children’s psyche, psychophysical development disorders and difficulties in social adaptation in the
new cultural conditions of the receiving country. The new legislative act on
foreigners24 introduces regulations concerning the placement of foreign children without legal guardians in guarded centres. In line with the regulations
children under the age of 15 who remain without legal guardianship will not
be placed in guarded centres. The previous project of the legislative act on foreigners assumed that children under the age of 13 will be placed in guarded
centres. In the light of the Convention on the Rights of the Child and other
international legislative acts binding for Poland, it is justified to expect that
foreign children’s detention, both those under legal guardianship and those
deprived of this guardianship, will be completely abolished. The Centre of
Legal Aid under the patronage of Halina Nieć points that “In the prepared
plan of implementation there are no regulations which would confirm such
assumptions, or even indicate the possibility to consider a change in appropriate legislative acts on the issue in the future. We postulate that appropriate regulations be placed in the document in question as being in line with
the consequently presented position of Polish non-government organisations
working for foreign children’s rights”25.
The European Court of Human Rights, ruling in matters concerning minors’ detention, stresses their vulnerability in detention and the negative
effects resulting from their separation from families or the closest guardians. The court rules that children’s detention is a violation of article 5 of the
European Court of Human Rights (i.e. the right to freedom and personal
safety) and article 3 (i.e. freedom from tortures and inhumane or humiliating
treatment).”26 Thus, it is also a violation of Article 3 of the Convention on the
23
Information on the subject came from, among others: the Helsinki Foundation for Human Rights, Amnesty International, Association for Legal Intervention.
24
On 30 December 2013 a new legislative act on foreigners was published in the Law Journal
(Law Journal from 2013 pos. 1650). The act came into force on 1 May 2014.
25
Stanowisko Centrum Pomocy Prawnej im. Haliny Nieć odnośnie planu wdrażania dla dokumentu: “Polityka migracyjna Polski – stan obecny i postulowane działania”, Kraków 31 January 2014 http://bip.msw.gov.pl/download/4/20308/UwagiCPPimHNiezdnia30stycznia2014.
pdf. Accessed 20 Feb 2014.
26
“Kampania NA RZECZ CAŁKOWITEGO ZNIESIENIA UMIESZCZANIA DZIECI
CUDZOZIEMSKICH W ZAMKNIĘTYCH OŚRODKACH STRZEŻONYCH” (3.2012)
158
Rights of the Child which takes into consideration the well-being of a child:
“In all actions concerning children the child’s well-being will be the most crucial.” A court, deciding to send a minor without guardianship or family to a
guarded centre, must take into account the child’s well-being. Placing children in guarded centres should be an absolute exception, not a rule. Possible
placement of a minor in such an institution should only be an emergency
solution and last possibly the shortest period of time.
According to “Information on the state of realization of the rights of individuals placed in guarded centres for foreigners run by border guard”27:
“Bearing in mind Poland’s obligations resulting from the necessity to protect external borders of the European Union, the high level of instrumental
implementation of refugee procedures as well as immigrants’ treatment of Poland as a transit country, it is not possible to completely resign from placing
families with children in guarded centres. For humanitarian reasons and the
protection of family life it is not recommended to separate families by placing
parents in detention, while their children in educational care centres. However, it is recommended to undertake two-pronged actions whose purpose
would be to minimize the negative effects of minors’ detention.” Among these
tasks are the following:
“…assigning high priority to the proceedings towards individuals remaining in guarded centres and the highest priority to proceedings towards
foreign minors in order to limit they stay of families with children and
minors’ stay in guarded centres;
and placing all families with children and minors without guardianship
in one or two centres, along with heightening the efforts to guarantee possibly the best conditions in these centres – both living-space conditions as
well as educational personnel with qualifications in the area of teaching
foreigners and with the knowledge of appropriate languages”.28
The problem of re-emigrant children is also presented marginally. Re-emigrant children are returning to Polish schools in large cities and small towns.
http://www.hfhr.org.pl/wielokulturowosc/page.php?pag=1&sec=2&art=519&more=1.
Accessed 20 Feb 2014.
27
Informacja o stanie realizacji praw osób osadzonych w Strzeżonych Ośrodkach dla
Cudzoziemców prowadzonych przez Straż Graniczną. Ministerstwo Spraw Wewnętrznych,
Warszawa 2013 (Information on the state of realisation of the rights of individuals placed in
guarded centres for foreigners run by border guard Warsaw, January 2013). http://bip.msw.
gov.pl/download/4/15845/12-15-37KW378922DKSIWplik2.pdf Accessed 20 Feb 2014.
28
Informacja o stanie realizacji praw osób osadzonych w Strzeżonych Ośrodkach dla
Cudzoziemców prowadzonych przez Straż Graniczną. Ministerstwo Spraw Wewnętrznych,
Warszawa 2013 (Information on the state of realisation of the rights of individuals placed in
guarded centres for foreigners run by border guard Warsaw, January 2013). http://bip.msw.
gov.pl/download/4/15845/12-15-37KW378922DKSIWplik2.pdf Accessed 20 Feb 2014.
Each case is different and requires individual work with a child. In 2008 it
was estimated that in Polish schools of all levels there were 6101 re-emigrant
students – mainly the children of Poles who, once Poland joined the European Union, became part of mass economical migration abroad29. The data
from the Central Statistical Office confirms that the number of re-emigrant
children in Poland is constantly increasing. The data from the Ministry of
National Education indicate that re-migrant children, who have returned to
Polish schools since 2008, had to compensate for the differences in school
curricula. The longer a child remained abroad, the deeper and stronger is the
repeated cultural shock it experiences.
With regard to the declarations of Poles (living abroad regarding their return) to return to the country of origin the number can be assumed to grow
in the future. It is difficult to indicate clear forms of discrimination against
this group. Re-emigrant children encounter a number of problems, such as:
• communication barriers in using Polish language;
• adaptation and pedagogical difficulties connected with building relationships in a school environment;
• complementation of curriculum differences, in particular in science
subjects;
• difficulties with mastering the grammar and written form of Polish language which is an essential component in external exams;
• difficult contact with parents, if they remain abroad.30
With regard to the above, it would be necessary to arrange additional free Polish language lessons, arrange additional compensatory lessons in compulsory
subjects, and provision of psychological support for the students and their
parents/ guardians.
Polish schools differ from British, Irish or French ones not only in the
culturally homogeneous school class but also in the way knowledge is transferred and in the methods of working with children. What is new for the
re-emigrant student is the system of education, curriculum, teachers’ requirements and teacher-student relations. Years of learning in a different language
and distinct socio-cultural contexts, months spent in preschools and schools
in Great Britain, Ireland, Norway or other European Union countries or out29
The greatest number of re-emigrant children was in primary schools (4156) and lower
secondary schools (1546). Total data for the school year 2008 and the first term of 2009/2010,
gathered through curators of education. Based on: The response of Zbigniew Włodkowski –
under secretary of state in the Ministry of National Education from 10 June 2010 to the Interpellation no 15801 by Kazimierz Moskal. K. Moskal (2010). Interpellation on educational
problems of re-emigrant children. http://sejm.e-prawnik.pl/vi-kadencja/interpelacje/8253.
html. Accessed 1 Mar 2014.
30
Ibidem.
160
side Europe, very often create distance to the language, culture and history
of one’s country of origin. The backlog and shortcomings in knowledge and
skills result from the differences in curricula, disparities in social and cultural
contexts as well as the amount of knowledge which is transferred (theoretical,
not practical).
Teachers’ experience indicates that after a longer stay abroad students return without the knowledge of Polish grammar and orthography. They are
often not familiar with or rooted in the history and geography of their country taught at Polish schools. The hard-working parents – emigrants- do not
always have time nor possibilities, and very often – conditions, to care for
Polish education of their children. Some of the parents use the language of
the country of residency, or a local dialect (e.g. Silesian) in everyday contact
with their children. Thus, the child is not exposed to Polish literary language
at home. “They do not know the set texts whose knowledge is compulsory
in Polish schools. They do not know what a metaphor or an apostrophe is”31
Once the decision to return has been made, the effects of linguistic and cultural distance to the country of origin become apparent to all participants of
the educational-didactic process. Teachers’ observations indicate that a number of re-emigrant students in Polish schools “fall behind the class”, as they
cannot write or read in Polish, or they have difficulties with both of the skills.
As results from the data of the Ministry of National Education the greatest
problem refers to primary school students (over 4 thousand), who have to
overcome communication barriers in using Polish as a native language both
in speech and in writing. Some students also face problems concerning national identity.
Additionally, teachers point at difficulties with understanding messages
and speaking Polish correctly, which, as a result, generates problems with relating to peer group and integration in a school class. Among the recurring
problems are the syntax and orthography as well as pronunciation of syllables
which are natural for the Polish language: ”sz” (“sh”), “cz” (“tch”), “dż” (“dj”).
The shortcomings in knowledge (at a particular level of education) of the
students returning from abroad are usually high, thus teachers can conduct
additional compensatory lessons in the field of particular school subjects.
Children who return to the country not knowing Polish language or knowing
it at insufficient level are granted help in the form of additional, free Polish
language lessons.32 Arrangement of this kind of aid is the competence of the
31
K. Domagała, Reemigranci na Śląsku: Angielska szkoła, śląskie problemy, Dziennik Zachodni, 2013: http://www.dziennikzachodni.pl/artykul/874993,reemigranci-na-slasku-angielskaszkola-slaskie-problemy,id,t.html. Accessed 26 Feb 2014.
32
The present regulations are included in art. 94 of the Legilsative Act of 7 September 1991
on the system of education, amended in March 2009. The regulations came into force on 1
January 2010.
organ which manages a school. However, the total period of time devoted to
such lessons cannot exceed 12 months. Such lessons have been organised by
the Ministry’s order since 2010. The number of re-emigrant children who face
difficulties with language competences will grow in school classes, hence the
need for systemic actions which support re-emigrant students and their parents as well as the need to enable students access to the quality of education
which is appropriate and adequate for the level of education.
The Polish education system assumes that all students residing in the territory of Poland, or returning from abroad, are accepted to school following a
legislative necessity to realize an educational obligation, based on the following documents:
• an official certificate issued by a local school from abroad33 (if the certificate is issued in the educational system of a given country) or a certificate issued by the head teacher of the school which a student attended;
• certificates of graduation from the consecutive classes of primary
school abroad, if the student attended any.34
The questions connected with the acknowledgement of children’s and youth’s
foreign certificates are determined in the regulations of the Order of the Minister of National Education of 6 April 2006 on the nostrification of school certificates and secondary school graduation exams certificates received abroad.
“Graduation certificates can be nostrified by an education curator appropriate
for the place of residence of the person who applies for nostrification, and in
case the place of residence cannot be produced, by an education curator appropriate for the institution where the person intends to submit the certificate
33
The term “a certificate received abroad” refers to any document issued by an institution
authorized to do it, which confirms graduation from a school or from a particular level of education abroad.
A certificate received abroad is acknowledged as an equivalent to a certificate of graduation
from a Polish public primary school if the period of education defined in a curriculum
necessary to receive this certificate is equal or longer than 6 years, and the candidates accepted
for the first year of education are not older than 6. See: The Order of the Minister of National
Education and Science of 6 April 2006 on the nostrification of school certificates and secondary
school exams certificates received abroad (Law Journal of 13 April 2006.).
34
More: A.Baranowska et all. (2008). Powrotnik. Nawigacja dla powracających. Wydanie
I, Warszawa. http://www.kopenhaga.msz.gov.pl/resource/15f62d31-4666-440d-9657afe26b20591a; Powroty. Zielona linia: http://www.powroty.gov.pl/download/Powrotnik_
Nawigacja_dla_powracajacych.pdf. Accessed 20 Feb 2014;
§19 of act 1 p. 3 and act 3 of the order of the Minister of National Education and Sport of 20
February 2004 on the conditions and procedures of accepting students to public schools as
well as transfers from one type of school to another (Law Journal from 2004 No 26, pos. 232).
162
received abroad.”35 The documents mentioned above are a confirmation that
students fulfilled their educational obligation and a guarantee of grades received by them at school abroad. All required foreign documents allowed in
Poland, based on the legislative act on the Polish language, must be translated
into Polish. It is worth stressing that schools do not require from parents/
guardians of the student to undergo psychological tests concerning the psychological state and the level of development of a child. Helping in children’s
adaptation to the realities of a Polish school is the competence of class teachers, pedagogical staff, school pedagogues, psychologists, parents and other
people involved in children’s care.
Following the decision of an educational institution head person (sometimes the acceptance process takes place after a consultation with teachers),
every student returning to school is accepted and classified – in the Polish
system of education – to a proper class based on the application submitted to
a school head person, a certificate from a foreign school, the total number of
school years of the child since the age of five and after an interview with the
candidate. Accepting a child to an educational institution the head person
also takes into consideration the student’s age, the number of years the child
attended to school (including the years of education in Polish schools) and
the class which the candidate has graduated from. In case a student has not
been accepted to a preferred school (this particularly concerns lower and upper secondary schools), parents or guardians have the right to appeal from the
head person’s decision to the department of education.
It is necessary to remember about the rule of localization as children from
a particular region or district are given preference in being accepted to e.g.
lower secondary schools. Hence, the decision on being accepted to school is
influenced by the registration of residence. Of course, parents/ guardians can
submit an application form to any school selected by them, yet their application will be considered with reference to the number of places the school has
at its disposal. The decision to accept a student is taken by the head person of
the school.
What about counteracting discrimination against children in
the contemporary world?
In recent years various anti-discrimination actions for children and their
guardians have been undertaken. These actions are a result of the European
Union policy for the equality and equal opportunities of European states citi35
Chat with M. Sielatycki, Regulations on accepting children to schools in Poland. Transcript available on the site: http://www.powroty.gov.pl/pl/chat/archiwum/1056.html. Accessed
20 Nov 2013.
zens. The legislation changes of anti-discrimination nature have contributed
to the development of anti-discrimination strategy and to undertaking numerous actions for the purpose of counteracting discrimination.
The Open Society Institute took a decision in 2007 to realize an educational
program, called “Education Support Program” (ESP), which is devoted to the
education of migrant children, minority children and marginalized children.
The aim of the program, realized in France, Germany, Holland and Great Britain, is social integration and prevention of injustice in the sphere of education.36
Actions of similar nature are initiated also in other countries, including Poland.
The reports concerning Poland indicate positive changes which have taken
place in recent years. At the same time it is recommended to:
•
•
•
•
•
undertake efforts to eradicate racism among school children;
launch anti-racist campaigns targeted at the entire society, ensure
equal opportunities for Roma children and eradicate segregation systems at schools;
cooperate with parents for the purpose of ensuring full school attendance;
increase the level of education in reception centres and guarded centres;
provide special care for foreign children.37
European Union countries are countries which are at the stage of strong
transformations as far as population composition is concerned: an inflow of
immigrants and at the same time strong internal economic migration. The
inner movement of EU inhabitants and the inflow of population (including
families with children) from outside the EU is increasing, which is followed
by cultural and national diversity as well as problems of social integration,
including children’s integration and a guarantee of their rights referred to in
the Convention. It is particularly visible in large urban centres. On the one
hand, this situation, first and foremost, creates the need to promote effective
integration of the newcomers with the local community, which would allow
foreigners to preserve their identity and to function in an alien social reality.
On the other hand, it draws attention to the rights of migrant children (from
ethnic minorities, immigrants and re-emigrants) to non-discrimination.
An analysis of the phenomenon of discrimination against children from
ethnic minorities, immigrant and re-emigrant children, both in Europe and
36
Education for Migrants, Minorities, and Marginalized Children in Europe (EMMME).
ECRI Report on Poland published on 15 June 2010, Council of Europe, Strasbourg 2010,
CRI(2010)18, p. 21. Website: http://www.coe.int/t/dghl/monitoring/ecri/country-by-country/
poland/POL-CbC-IV-2010-018-POL.pdf. Accessed 28 Feb 2014.
37
164
Poland, allows to outline areas of necessary changes to improve the present
situation and reduce the threat of discrimination:
• perception of discrimination against children in a universal perspective, in the context of discrimination against adults;
• fragmentary treatment of discrimination against children – the most
frequently addressed problem is discrimination against children in the
sphere of education, ignoring other spheres, such as health care, living
conditions, etc.;
• lack of regular monitoring of discrimination against children;
• lack of instruments for the monitoring of discrimination against children;
• referring research to selected social groups – refugee and Roma children;
• lack of institutions which would address the problem of discrimination
against children;
• lack of integrated anti-discrimination actions for children (the scope
of intervention is connected with the state’s policies and experience in
this field).
As was stressed by Cecilia Malmström, Home Affairs Commissioner “The
minors arriving alone to our borders are among the most exposed and vulnerable in our societies. Although it is encouraging that EU policies have helped
to improve the conditions and protection of the children, more challenges
lie ahead. We need to improve our procedures to ensure that these children
receive a dignified welcome at Europe’s borders. This includes better cooperation and information sharing between EU countries”38.
Final remarks
In the present text we attempted to answer the following questions: What is
the scale and nature of discrimination, and how to generally define discrimination against children from ethnic, national minorities, as well as migrant
and re-emigrant children?
We tried to present the phenomena of discrimination accompanying the
everyday life of children regarded as ‘different’, ‘worse’, ‘other’ due to their cultural, ethnic and national distinctness through the prism of global and local
processes, occurring within the legal-political, social-educational and cultural
38
Asylum and migration: EU must do more to protect unaccompanied children,
http://europa.eu/rapid/press-release_IP-12-1033_en.htm. Accessed 26 Feb 2014.
dimensions, in relation to both the wide and the narrow spectrum of the related phenomena.
The right of foreign, minority and re-emigrant children to non-discrimination, first and foremost in the sphere of education, requires a revision of
previously undertaken actions and preparation of educational institutions
and environments to work in the conditions of the self-deconstructing multiculturalism. It seems crucial to take into account the differences in the cultural character and experience of working with minority and foreign children in
particular countries of the European Union. The models of integration (if only
due to the differentiation in the contextual-historical migration movement,
traditions of immigration and emigration, the presence of particular migrant
groups over the centuries, colonial past, differences in the main channels of
foreigners’ movement: employees, family reunions, individuals in search of
protection, repatriates, illegal immigrants, historical presence of national and
ethnic minorities in the territory of a particular country, traditions of interethnic relations or lack thereof39) and the character of anti-discrimination
policies in European countries differ both in concepts adopted by particular
countries, employed means, legislation and results achieved through particular socio-political integration strategies.
Thus, it seems essential to develop interdepartmental solutions in the spirit
of anti-discrimination, adequate for the needs and nature of work in multicultural groups of children, youth and their parents as well as in local environments. It is particularly important to include in curricula the content
of multicultural and anti-discrimination education and to promote children’s
rights, both among children and adults, as well as to promote openness and
the value of cooperation in the conditions of social and cultural heterogeneity from the earliest period of a child’s life. This implies the necessity to go
beyond systemic barriers and to establish institutions “outside”, to undertake
cooperation with educational authorities in a local community, in the region,
with libraries, community centres, immigrant and minority environments
and associations, local environment or the media.
In the expert report entitled “An analysis of experiences of European countries in the sphere of foreign children and youth education” (Dąbrowa, Markowska-Manista 2010) for the project “You too can get an education in Warsaw” for the Education Department of the City of Warsaw we indicated the
need to develop a coherent and multidimensional concept of anti-discrimination policy aimed at integration and equalization of chances for migrant
students, most importantly refugee children. It should include:
39
Cf.: A. Kicinger, Koncepcje integracji imigrantów ze społeczeństwem przyjmującym
na przykładzie praktyki wybranych państw europejskich, Międzynarodowa Organizacja do
spraw Migracji, 2005. http://www.iom.pl/res/files/integracja/integrUE_koncepcje.doc
166
• a diagnosis of the needs of migrant students and students of migrant
origin;
• establishment of a current school base and communication between
schools in which foreign students learn;
• establishment of a base of “good practices” realised in the sphere of
migrant children education and intercultural education;
• distribution of “effective” good practices in the sphere of immigrant
children education;
• development of cooperation between teachers, schools, experts and
other actors of foreign children education;
• training sessions for pedagogical staff in the sphere of intercultural and
multicultural education, prepared in cooperation with teacher training
centres, higher education institutions, NGOs (including leaders from
other cultural groups);
• ensuring coherent and effective linguistic support to students in the
sphere of learning the language of the receiving country and their native languages based on cultural backgrounds;
• improvement of academic training of teachers and pedagogues, training sessions and competences of teachers with reference to the increasingly diversified needs of students;
• initiation of dialogue with migrant parents and their engagement in
school activities;
• development of social awareness of Otherness and diversity in the Polish society;
• shaping the attitudes of openness, dialogue and respect for the Other/
otherness;
• tightening cooperation between institutions of formal and informal
education;
• development of international cooperation in the sphere of experience
exchange connected with working in immigrant environments.
To guarantee the children of national and ethnic minorities, re-emigrant children and foreign children their rights, including the right to non-discrimination in the opposition to a strong influence of the culture of the place of
residence (local dimension) as well as problems resulting from the diversification in societies (global dimension), was and still is the most complicated task
facing European Union societies. This is a unique task, particularly in the face
of lack of awareness of one’s rights40 among the inhabitants of EU countries,
40
According to EU-MIDIS research done by the European Agency of Fundamental Rights
in 2010 only 25 % of respondents claimed to have knowledge on anti-discrimination regulations. Research results available on: http://fra.europa.eu/en/publications-and-resources. Accessed 20 Feb 2014.
a task which requires to be open to the testimonies of children belonging
to minority groups and to give them a voice – a voice which still remains in
minority.
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enabling the preservation of the sense of national, ethnic and language identity of students belonging to national and ethnic minorities and communities using a regional
language (Law Journal 2007 No 214, pos.1579).
172
•
•
•
•
•
•
Would anti-discrimination regulations referring to children be recommended (including ethnic minority children, immigrant and re-emigrant children)?
What is the situation of ethnic minority children, immigrant and re-emigrant children residing in Europe in Your country?
What actions do you know which are undertaken to counteract discrimination
against children in Europe and in Poland?
What education rights do minority children in your country have?
How to bring out and include in national debates on children’s rights to non-discrimination the voices of migrant, re-emigrant, national and ethnic minority and refugee
children? How- in a non-discriminatory way – to make them be heard?
Present an idea of actions which children and/or youth would be able to undertake to
inform and make adults aware of their rights and which would be noticeable.
Further readings
Discrimination in the EU in 2012. Report, Special Eurobarometr, November 2012. http://
ec.europa.eu/public_opinion/archives/ebs/ebs_393_en.pdf. Accessed 28 Feb 2014.
Education and Migrations strategies for integrating migrant children in European schools
and societies. A synthesis of research findings for policy-makers. An independent report submitted to the European Commission by the NESSE network of experts, Brussels: European Commission. http://www.nesse.fr/nesse/activities/reports/activities/
reports/education-and-migration-pdf. Accessed 28 Feb 2014.
Gambaro A., Kobayashi Y., Levy R., Rasheed L., Winkler E. (2008), Unaccompanied children. What happens once they are back home? Project report. Geneve: International
Reference Centre for the Rights of Children Deprived of their Family. http://www.
iss-ssi.org/2009/assets/files/others/Unaccompanied_children-ISS-Final_report23June_2008.pdf. Accessed 1 Mar 2014
Little D. (2010). The linguistic and educational integration of children and adolescents
from immigrant backgrounds. Strasbourg: Council of Europe. http://www.coe.int/t/
dg4/linguistic/Source/Source2010_ForumGeneva/MigrantChildrenConceptPaper_
EN.pdf. Accessed 1 Mar 2014.
Zick A., Küpper B., Hövermann A. (2011). Intolerance, Prejudice and Discrimination. A
European Report. Berlin: Friedrich Ebert Stiftung.
CHAPTER 7: Multiple-discrimination of disabled children with a migrant background 173
CHAPTER 7:
MULTIPLE-DISCRIMINATION
OF DISABLED CHILDREN WITH
A MIGRANT BACKGROUND
Ivan Traina1, Roberta Caldin2
Ivan Traina is PhD Research Advisor at the Department of the
Education Studies of the University of Bologna. His interest in
children rights topics is focused on disabled children with a
migrant background, inclusive education, multi-discrimination
of vulnerable groups, assistive technology and participatory
approaches.
[email protected]
Roberta Caldin is Professor of Special Education at the Department of the Education Studies of the University of Bologna.
Her interest in children rights topics is focused on disabled
children with a migrant background. She has conducted
a research project aimed at investigating the relationship
between migrant disabled students (aged 0–14) and the
Italian school system (2008–2010).
[email protected]
Introduction
This paper focuses on the theme of multiple-discrimination of disabled children with a migrant background. It aims to provide an overview on the meaning of multiple-discrimination in relation to migration and children’s disability, offering a possible tool and an inclusive strategy to tackle the issue. The
paper attempts to provide information to support teachers, researchers and
students interested in the studies children’s right to non-discrimination, and
the perspective of equality and inclusion.
In order to address the question, an in-depth analysis of academic literature, studies, international documents and policy guidelines, has been carried
out. The methodology used for the literature review was to search databases3
1
The chapters 1, 2 and 3
The chapters 2, 4 and 5
3
Database searches: ProQuest Family Health, ProQuest Education Journals, ProQuest
Nursing & Allied Health Source, ProQuest Eric, ProQuest Social Science Journals, Google
Scholar
2
174
Ivan Traina, Roberta Caldin
and printed publications mentioning or focusing upon disabled children with
migrant backgrounds. An extensive web search was conducted in order to
identify online abstracts, reports, projects on this theme. From the analysis,
it emerged that not much has been written or documented on multiple-discrimination against children with disability and migrant background.
This new topic has been fairly investigated at national and international
level since the beginning of the new century. While scientific literature concerning teaching, welcoming and inclusion strategies for students with a migrant background, as well as disability, is very broad, the combination of the
two subjects has not yet seen significant development. For this reason, the
first part of the paper provides a brief summary of the meaning of the term
“multiple-discrimination”. Thereafter, a possible tool to identify barriers for
inclusion, resources and aids in different sectors of life is presented. The second part presents a research project of “inclusive school” as a possible strategy to tackle the issue, promoted by the Municipality of Bologna and implemented in collaboration with the Department of Educational Studies of the
University of Bologna.
Background
Among the few examples of research on multiple-discrimination in relation to
migration and children’s disability, some of the studies focus on: migrant families of disabled children (Caldin, Argiropoulos and Dainese, 2010; Caldin,
2012a; Goussot, 2010); how the child’s progress is perceived (Lusa, 2009); the
relationship with schools (Al-Hassan and Gardener III, 2002); language as a
barrier to parental involvement in their children’s education (Reyes-Blanes,
2002); and access to services (Chamba and Ahmed, 1999).
Despite the many studies on the consequences and impacts on persons
with disability due to environmental disasters, wars and conflicts, in many
international policy documentation there is a persistent lack of focus on migrant disabled children, as well as a specific reflection on the role of the agencies, schools and teaching, family, cultural mediators and welfare services.
While it is true that some studies have been conducted on disabled refugees or asylum seekers, few works have considered the process of integration of disabled children once they have arrived in a foreign country. This
sort of negligence is also demonstrated by the exclusion of disabled migrants,
refugees and asylum seekers from policy documents4. The only official EU
documents referring to the issue are: the Council of Europe Action Plan
4
Including: the UN Convention on the Rights of Persons with Disabilities (UNCRPD,
2006); the World Report on Disability (WHO, 2011); the European Disability Strategy (EU,
2010a), the Study of Disability in EC Development Cooperation (EU, 2010b).
CHAPTER 7: Multiple-discrimination of disabled children with a migrant background
175
2006–2015 that recommends “people with disabilities from minority groups,
disabled migrants and refugees may experience multiple disadvantage because
of discrimination, lack of familiarity with public services. Member States should
ensure that support for people with disabilities takes account of their language or
cultural background and the particular needs of such a minority group” (Council of Europe, 2006); and the Study on Discrimination Generated by the Intersection of Gender and Disability (EU, 2013).
Concerning references to European projects on the topic, this is further
developed with the help of studies published under two projects funded in
the framework of Lifelong Learning Programme (sub-programme Comenius
Action 2). The first entitled “Development of Conditions for Disabled Children
Gypsies and Migrant Workers” was implemented between 1996 and 1998.
The second “Teaching materials for pupils with disabilities and immigrant
background”5, was conducted between 1999 and 2001 (European Agency for
Development in Special Needs Education, 2009).
Considering that the migratory phenomenon has a clear impact on the
education and health systems of the host countries (national level), giving rise
to new intercultural issues and problems (international level), schools and
education services can play a key role in facilitating the process of inclusion.
This is due to the fact that schools are the best environments for meeting the
needs of children and families by making them feel welcome and supported,
taking into account the different language and cultural background. The educational context can also offer the opportunity for participation among teachers, services and cultural mediators to increase the quality of the process by
the inclusion of children (disabled and not) with migrant background and
their families.
For this reason we consider the education system to be the agency that,
in collaboration with others, including the family, health services, local authorities, public and private bodies, civil society and immigrant associations,
can gather information for an evidence-based knowledge of the phenomena.
Raising awareness in society about the role of school as primary place of social inclusion and “inescapable point of reference for migrant families and their
children” (Caldin, 2012b), where innovative solutions to meet new and existing needs can emerge.
5
Available at: http://eacea.ec.europa.eu/static/Bots/docbots/Documents/Compendium/
Comenius/comp_c2_97.PDF
176
Children with disability in migrant families: the concept
of multiple-discrimination
Vulnerability is widespread in migrant families with disabled children. In the
European context there is the experience that migrant families who arrive
with a disabled child, believe that they can receive more care and assistance
in the new country. The reality is very different from the expectations and
migrant families receive little attention. For this reason, practical difficulties
of various kinds are encountered, including cultural, social and linguistic barriers; allocation of housing suited to the child’s disability; access to health services and education; lack of friendship, kinship networks, participation, etc. .
These difficulties are representative of the different contexts and sectors of
life that a family with a disabled children have to face in everyday life. They
often encounter different kinds of discrimination arising both from the multitude of contexts and from the experience of multiple issues still subject to
discrimination, in this case racism and disability.
The concept of multiple-discrimination recognises that a person “can be
discriminated against on more than one ground in any given situation or time.
In other words, a person does not only have a minority background, but also a
certain age and gender that might add to her or his vulnerability to discrimination” (EU-MIDIS, 2011)6. For example, a woman with a disability might be
affected by discrimination in a different way to a man with the same disability
(EU, 2013). Other characteristics or circumstances, such as religious minority
or educational background, can affect experiences of discrimination. The development of the multiple-discrimination concept is relatively recent, but of
particular interest because it opens up to new possible trajectories of research
in order to understand social phenomena marked by a high level of not instantly comprehensible complexity and multi-factor aspects.
Considering that the term “multiple” means discrimination on more than
one ground “in any given situation or time” (EU-MIDIS, 2011), in our particular case we can use it as a form of discrimination that indicates a wider set
of discriminatory situations affecting children with disability from migrant
families. Nevertheless, it has been proven that migrant families are subjected
to an enduring double discrimination: racism – as well as disability – and
related dynamics of social exclusion. Moreover, widespread stereotypes based
on race and disability greatly limit access to: educational opportunities, public services and provisions, healthcare, spaces for socialisation and inclusive
environments, more so than native disabled children.
6
As proved by the recent European Fundamental Rights Agency project on access to healthcare, which the Department of Education Studies of the Alma Mater Studiorum University of
Bologna took part in: Available at: http://fra.europa.eu/en/publication/2012/inequalities-andmultiple-discrimination-healthcare
177
The analysis carried out on existing literature reveals that some of the conducted studies had focused either on the issue of disabled children and special
education needs (Meijer et al., 2003) or on the issue of education of children
with migrant families (Eurydice, 2004). However, no studies have focused on
the relation of both themes (European Agency for Development in Special
Needs Education, 2009).In order to try to shed light on what it may mean for
children to be migrant and disabled in terms of discrimination and exclusion,
is important to summarise the main questions that need to be considered in
order to understand and address this double issue:
• causes of migration;
• intersections of disability, race, culture, poverty, gender (including legal
status in the migration process);
• reconstruction of disabled lives in the origin country (including cultural attitudes and social expectations);
• treatment in the host country (including medical treatment and education);
• policies addressed to disabled migrants (including specific welfare
measures);
• social services (including forms of participation and barriers to inclusion);
• resources and aids (including services, technologies, etc.);
• practices for the respect of human and civil rights (including social justice).
In order to gather information on these questions, we propose an integrated
and holistic approach using a “Contextual Map” as a tool to schematise the information. It could help professionals (teachers, educators, caregivers, experts
in migration and disability, etc.) to get a better understanding of the situation of multiple-discrimination against children with disability and migrant
backgrounds in their surroundings. In particular, we refer to different areas of
everyday life (or sectors), and for each of these we try to identify the local features in terms of barriers, resources and aids.The map presented below aims
not only to provide an overview of context including barriers and resources, but mostly to identify possible solutions on how to address and reduce
this complex phenomenon in the interconnections between different sectors
of life.
178
3. Understanding the Complex Phenomenon of Multi-discrimination:
the Contextual Map
Multi-discrimination can be denoted as a multi-dimensional social phenomenon, which needs to be addressed as an evolving challenge, in particular for
people with disability, immigrants and other vulnerable categories, such as
women, the elderly, ethnic and religious minorities, etc.. In order to face this
multi-dimensional social phenomenon and to understanding the concept of
multiple-discrimination described, in this section we wish to propose as a
tool the contextual map.
We think that considering the complex issues related to the subject matter of this paper, an integrated and holistic approach is needed to understand
barriers and devise solutions to minimise them. Compared to approaches that
consider disability with a separate modality, we would like to use an approach
that aims to analyse intersections and conjunctions between different sectors
of life (education, health, living, participation). It includes variables that are
used to evaluate dynamic factors facilitating or hindering inclusion, affirmation of civil and human rights, reduction of barriers and obstacles. These variables should be seen as integrated elements of complex and dynamic-faceted
environments (physical, cultural, attitudinal, socio-economic and virtual),
where new challenges and opportunities constantly emerge.
In order to adopt and facilitate the application of this holistic approach,
and considering disability as an “evolving concept” representing a complex
phenomenon reflecting interactions between “features of a person’s body and
features of the society in which he or she lives” (WHO, 2007), a contextual map
was designed to organise different information from different sectors, and
orientate possible integrated interventions. The idea consists of using the map
to address the various issues in a cross cutting way, taking into account the
multitude of aspects that are closely connected to the fields of disability and
migration. The map should be used not only to conceptualize three different
dimensions of research (represented by the axes in figure 1), but also as an
operational tool to visualize what resources, aids, facilitating or hindering factors are available in a precise context and at a given time.
The map is designed according to the areas identified by the Commission
in the EU Disability Strategy 2010–207, and the new priorities for disability
research in Europe (Priestley, Waddington, Bessozi, 2010). It includes three
conceptual dimensions of research represented by three axes. This approach
could be used for “understanding”, i.e. conceptualising the information from
different sectors of life (“z” axis in the figure), while investigating them with
an integrated approach that avoids compartments or limited sectors analysis.
7
Available at: http://ec.europa.eu/justice/discrimination/disabilities/disability-strategy/
index_en.htm
179
The map could be also used to design “action”, identifying resources and aids
(“x” axis in the figure) through a set of domains where factors facilitating or
hindering access, participation and inclusion can be assessed. The last dimension (“y” axis in the figure) completes the framework, providing elements to
“assess” barriers. For this aspect the participation and involvement of family,
friends, immigrant associations, organisations for the disabled (hereinafter
DPOs), cultural mediators, activists in civil society, advocacy and lobbying
organisations is fundamental, as it “could provide needful feedback, suggestions
and contributions to the development of policy” (Oliver and Barnes, 2012). Promoting “understanding, action and assess” is the core aspect around which
the Contextual Map was designed.
\
Environmental
Economic
Barriers
Socio-cultural
Linguistic
Education
Sectors of life
[
Health and care
Living (including
housing, leisure, sport)
Civil
participation
]
Services
&
products
delivery
Technol Attitudes
Policy
ogy
mainstreaming
&
expectations
Resources and aids
Fig. 1: Contextual Map
180
3.1. Focusing on dimensions and intersections
In order to provide a focus on how to read the map, a summary description of
its different dimensions and the meaning of the intersections between sectors,
barriers and resources, are given below.
The “Sectors of life” – “z” axis
This dimension is based on the traditional approach to disability issues, where
barriers are addressed (and innovations are generated) within 4 different sectors constituting the ordinary dimensions of life: education, health and care,
living and participation. The information from these sectors should be considered in order to understand and design multifaceted barrier-free environments8 for the inclusion of all (WHO, 2010).
The “Resources and aids” – “x” axis
This dimension is inspired by the International Classification of Functioning (ICF)9 and identifies 4 domains of possible resources and aids, within
which facilitating or hindering factors can emerge, thus generating different
scenarios of interventions (WHO, 2011). These include: services and products, technology, attitudes and expectations, and policy. These domains are
not exhaustive, but only illustrative, whereby it is possible to consider many
other domains. The choice for taking into account these domains lies in the
fact that are considered as possible tools or scenarios in which to develop
socially innovative actions.
The “Barriers” – “y” axis
This dimension is represented by linguistic, socio-cultural, economic and environmental barriers. This implies the active involvement of families, professionals, experts, cultural mediators, DPOs, activists in civil society, advocacy
and lobbying organisations aimed at gathering feedback, suggestions, evaluations and new ideas. The proposed framework would not be completed without a dimension which allows the analysis of barriers and assesses the impact,
addressing change at multiple levels (socio-cultural, linguistic, economic and
environmental). The viewpoint means recognising that factors affect human
behaviour, at multiple levels and that assessing barriers or removing them
requires the active involvement of persons to suggest effective solutions.
8
WHO, (2010). Community-Based Rehabilitation Guidelines
WHO, (2001). ICF: International Classification of Functioning, Disability and Health. Geneva
9
181
The levels of barriers in the research and analysis of the intersections between sectors of life and resources are represented by parallelepipeds in the
map. The level – height of parallelepiped – depends on the context characteristics.
Barriers at linguistic
level
Barriers at socio-cultural
level
Barriers at economic
level
Barriers at
environmental level
Fig. 2: Levels of barriers
For example: if we consider the sector “Education” and the intersections with
resources and aids, the surrounding context can be mapped to provide more
information for understanding the needs of families and children. This is
done through the answers to a series of questions, including: which are the
local support services; which agencies are able to provide guidance for assistive technologies; which policies and legislation; what are the attitudes and
expectations of the education system, families, and society at large. All these
questions should be taken into consideration and matched with possible linguistic, socio-cultural, economical and environmental barriers, because in
“multicultural contexts disability appears to be more complex and influenced
culturally” (Caldin, 2012b).
In this example linguistic barriers can emerge in the sectors of education,
health and care and civil participation. In this case the analysis on what services (public or private) are present in the context to supporting these needs
can help to develop further intervention to reduce these barriers. If the barriers are at socio-cultural level in the sector of civil participation instead, policy interventions can be recommended. Another case could be represented
by environmental barriers in the sector of living, in particular in home care
where the development of technology (e-health, home automation, assistive
technology) could support families.
182
\
Environmental
Economic
Socio-cultural
Linguistic
[
Education
Health and care
Living
Civil participation
]
Services
& products
delivery
Technol Attitudes
&
ogy
expectations
Policy
Fig. 3: Example of context mapping
On the basis of this example, once the context, possible barriers and resources
are mapped, strategies of intervention can be designed. A possible strategy
that we wish to propose is presented in the following section and concerns the
approach of the Inclusive school.
4. Inclusive school: A Possible Strategy to Face the Issue
of Multiple-discrimination
Having provided an example of a possible tool, such as the contextual map,
we wish to propose a strategy addressing the multiple-discrimination phenomenon that exists in schools. This insight was generated by a recent research project promoted by the City of Bologna in collaboration with the
Department of Education Studies of the University of Bologna. The research
project was coordinated by Roberta Caldin, Professor of Special Education
at the Department, and was conducted between March 2008 and November
2010, aiming to investigate the relationship between migrant disabled students (aged 0–14) and the Italian school system. The organisations involved
in the research were: 18 schools (and all schools in Bologna for the online
183
questionnaires elaborated), 6 Pre-schools, 6 ASL health boards (the Bologna
Municipality, 1 parish, 4 associations), 12 migrant families (33 people), 3 cooperatives and 1 Social Care Steering Committee. A total of 513 people were
involved, including: 304 class and support teachers, 91 school directors/class
and support staff, 6 health workers (neuro-psychiatric staff and educators), 37
educational service workers (preschools, pedagogical coordinators, educators
etc.), 5 social services workers, 33 migrants and 37 members of Inter-institutional round tables and scientific teams.
The tools used were: online questionnaires (addressed to all schools in the
municipality of Bologna), questionnaires for teaching staff, interviews, focus
groups, semi-structured interviews and planned meetings. According to the
most recent Caritas/Migrantes Reports (2008; 2010; 2011), Emilia Romagna
is one of Italian regions with the highest percentage of students who are children of migrants, and in the Bologna area alone there are citizens of 142 different countries. This exploratory research project is one of the first of its kind in
Italy and Europe, if we consider the specific Italian context which guarantees
inclusion of pupils with disabilities in schools. This migratory phenomenon
affects the education and health systems of the host countries, giving rise to
new organisational, social and cultural problems. As tested by many research
works, the inclusive school approach can represent a strategy for facing these
issues, as schools and education services play a key role “in facilitating the
process of inclusion, not only by offering appropriate responses to the cultural
transformations, but also by fostering cultural exchange and dialogue among
youths and educating them on global coexistence” (Caldin & Serra, 2011).
For immigrant families the school remains an essential reference, as a welcoming educational community (Canevaro, D’Alonzo, Ianes, Caldin, 2011),
representing the best environment for meeting the needs of families by making them feel welcome. The assumption was confirmed by teachers, as tested by the data collected through questionnaires and interviews, for whom
schools play a fundamental role in a disabled child’s education and are an important reference for migrant families. For example, schools and teachers are
the contact point with the social service system, a first guide to the complex
Italian welfare system which is often difficult to approach because of complex
bureaucratic procedures. In order to foster and affirm this referential role, it
is important to consider and organise school in an inclusive manner, not only
for its students but also for their families and, especially in cases of migration
and disability, also for ethnic and immigrant associations that are widely representative of the different nationalities present in the community.
As observed by the data and feedback gathered, an inclusive approach by
schools is the premise to creating a relationship with families based on trust.
Once this solid trust has been created, the family can be directly involved in
184
their children’s educational process. This was deemed an important element
in the success of inclusion of disabled children of migrants, so a relationship
based on trust is an element that makes the process easier. In an inclusive
school, the family and the school community can cooperate to ensure the
student’s wellbeing and work together in a coherent educational process. In
this way the inclusive aspect of school can be assumed as a strategy to face
the multiple-discrimination phenomenon. The main tools to put in practice within this strategy were based on communication and participation, as
emerged in the survey conducted among the people involved.
The main aspects to be considered when applying a strategy based on an
inclusive approach in the education context are summarised below:
•
•
•
•
•
•
create solid trust with families and communities;
support involvement in the education process;
apply a participatory approach;
adopt clear and effective communication;
respect diversity with an open-minded attitude;
support parents with language support measures.
These aspects help to underline the priority of strengthening cooperation between schools and migrant families which, if involved, respond and participate (Caldin, 2012b). For this reason we need to define tools and protocols for
welcoming, accompaniment and guidance, to ensure the effectiveness of the
process of inclusion of migrant pupils with disabilities, allowing us to meet
the challenges of a multicultural society.
5. Final remarks
What clearly emerges from the literature analysis conducted and the research
project implemented is that when a child of migrants has a disability the inclusion process becomes even more complex and many factors need to be
considered. For this reason, we think that the research community should
support and facilitate the work of teachers, educators, cultural mediators,
families, professionals, immigrant associations and DPOs.
Through the strategy and tool suggested, we have aimed to offer a contribution for a better understanding of the phenomenon, considering the different dimensions of the issue. Some considerations have emerged, and we
wish to highlight some aspects about the multi-discrimination suffered by
migrant families with disabled children. The first consideration is about the
185
role schools can play in determining the success of the inclusion process, representing the natural environment to place the child in (Sabatino, 2008), and
a channel for access to all the other services (Favaro, Demetrio, 2004).
Another consideration concerns the usefulness of mapping the context in
which families come into contact, considering different sectors of life, such
as education, health care, living and participation. In particular we need to
analyse existing or new needs and barriers (social, linguistic, economic and
environmental) and match them with resources and aids (within services and
products, technology, attitudes and policy), looking at these intersections to
understand and design multifaceted barrier-free environments. Moreover, it
seems that the parents’ perception of their child’s disability is influenced by
their local network and their relationship with their home country (Goussot,
2010; Moro, 1998). The network in which the families live is an important
element that influences the inclusion process. In fact social loneliness often
develops into isolation for these families, who experience a condition of social
invisibility with no significant relation in their daily routines, experiencing
multiple forms of discrimination. Migration with the aggravating circumstance of disability is a phenomenon that needs to be faced more structurally
through a holistic approach, which is closely linked to a common education
project, because “schools are not only called on to respond with solutions for
social transformations, but also to offer a new way of understanding the education and learning of the new generations” (Caldin, 2012a).
We wish to encouraging readers to interact with the tool proposed in order
to organise information from different sectors, and orientate possible integrated interventions.
In this paper we have dealt with some urgent elements to support inclusion processes for disabled children with a migrant background. It is considered that a holistic approach with inclusive strategies and structured instruments for the analysis of the context could represent a useful reference for
professionals, teachers, school workers, researchers and parents, who have the
responsibility of addressing forms of multiple discrimination and developing
an inclusive society for all.
186
References
Al-Hassan S., Gardner III R. (2002). Involving Immigrant Parents of Students with Disabilities in the Educational Process. In Teaching Exceptional Children, Vol. 34, n. 5, 58.
Caldin R., Argiropolus D., Dainese R. (2010). Migrant parents and children with disabilities. The representations of the professional and the perception of the families. In Ricerche di Pedagogia e Didattica, 5/n.1, pp. 1–38. Available at: http://rpd.cib.unibo.it/
article/view/1740 (10.08.2013)
Caldin R., & Serra F. (2011). Famiglie e bambini/e con disabilità complessa. Padova: Zancan.
Caldin R. (2012a). Inclusive social networks and inclusive schools for disabled children of
migrant families (in press).
Caldin R. (2012b.) Alunni con disabilitò, figli di migranti. Approcci culturali, questioni educative, prospettive inclusive. Biotipi, Liguori editori, Napoli.
Caritas/Migrantes (2008). Immigrazione. Dossier statistico 2008. XVIII Rapporto, Roma:
Idos.
Caritas/Migrantes (2010). Immigrazione Dossier Statistico 2010. X Rapporto sull’immigrazione – Dossier 1991–2010 – Per una cultura dell’altro, Roma: Idos.
Caritas/Migrantes (2011). Dossier Statistico Immigrazione 2011. XXI Rapporto – Oltre la
crisi, insieme, Roma: Idos.
Chamba R., Ahmad W. (1999). On the Edge: Minority Ethnic Families Caring for a Severely
Disabled Child. Joseph Rowntree Foundation.
Council of Europe (2006). Recommendation on the Council of Europe Action Plan to
Promote the Rights and Full Participation of People with Disabilities. Improving the
Quality of Life of People with Disability in Europe 2006–2015. Strasbourg: Council of
Europe. Appendix 4.6, pp. 32.
European Agency for Development in Special Needs Education (2009). Multicultural
Diversity and Special Needs Education. Odense, Denmark: European Agency for Development in Special Needs Education, pp. 13. Available at: https://www.europeanagency.org/news/news-files/Multicultural-Diversity-and-SNE.pdf (10.07.2013)
European Union (EU) (2013). Study on Discrimination Generated by the Intersection of
Gender and Disability. Available at: http://www.europarl.europa.eu/committees/it/
femm/studiesdownload.html?languageDocument=EN&file=93670 (16.09.2013)
European Union (EU) (2010a). European Disability Strategy 2010–2020.
European Union (EU) (2010b). Study of Disability in EC Development Cooperation. Available at: http://ec.europa.eu/europeaid/what/social-protection/documents/223185_
disability_study_en.pdf (10.05.2013)
European Union Minorities and Discrimination Survey (EU MIDIS) (2011). Data in
Focus Report 5. Multiple Discrimination. European Union Agency for Fundamental
Rights (FRA). Available at: http://fra.europa.eu/sites/default/files/fra_uploads/1454EU_MIDIS_DiF5-multiple-discrimination_EN.pdf (15.06.2013)
Eurydice (2000). Integrating immigrant Children into Schools in Europe. Brussels: Eurydice (European Commission, DG Education and Culture).
Favaro G., Demetrio D. (2004). Didattica interculturale. Nuovi sguardi, competenze, percorsi. Torino: Franco Angeli.
Goussot A. (2010). Foreigners children with special needs: the representation of disabled
children about parents. In Ricerche di Pedagogia e didattica 5/n.1, pp. 1–26. Available
at: http://rpd.cib.unibo.it/article/view/1763 (09.09.2013)
187
Lusa L. (2009). Perceptions of Asian Immigrant Families Of Children With Disabilities Towards Parental Involvement. New Perspectives on Asian American Parents, Students,
and Teachers Recruitment, edited by Clara C. Park, Russell Endo, Xue Lan Rong.
Meijer C., Soriano V., Watkins A. (2003). Special needs Education in Europe: provision in
Post Primary Education: Thematic Publication. Middelfart: Europe Agency for Development in special Needs Education.
Moro M.R. (1998). Psychothâerapie transculturelle des enfants de migrants. Parigi: Dunod.
Oliver M. and Barnes C. (2012). The New Politics of Disablement, Tavistock: Palgrave
Priestley M., Waddington L., Bessozi C. (2010). New priorities for disability research in
Europe: Towards a user-led agenda. In Disability & Society, 25(6), pp. 731–746.
Reyes-Blanes M. (2002). Partnering with Latino Migrant Families of Children with Disabilities: A Challenge, a Mission. No Child Left Behind: The Vital Role of Rural Schools.
Annual National Conference Proceedings of the American Council on Rural Special
Education (ACRES), 22nd Reno, NV, March 7–9/2002.
Sabatino G.M. (2008). Tutti a scuola. La presenza degli stranieri e il ruolo dell’inclusione
della scuola italiana. Brescia: La Scuola.
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61/106, Dec. 13, 2006.World Health Organization (WHO), 2001. International Classification of Functioning, Disability and Health. Geneva.
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Disability and Health for Children and Youth. Geneva.
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Geneva.
World Health Organization (WHO) (2011). World Report on Disability, World Health
Organization. Geneva.
An exercise for reflection
We conclude by proposing to try to use the contextual map for mapping your context in
relation to a possible situation a migrant family with a disabled child can face.
It means to chose one or more sector of life (education, health and care, living or civil
participation) and looking across possible resources and aids (represented by services,
technologies, attitudes or policies) assessing what barriers to inclusion and what possible
solutions. A possible list of questions to be answered for defining the map is reported
below.
For example, if referring to the sector of health and care:
•
•
•
Which are the local support services? In which way do they inform families? Did
these services present barriers to accessibility and how they are accessed?
What agencies are able to provide home automation or assistive technologies?
And if existing, can these aids be applied also to other sectors of life (e.g. education or living)? What are possible barriers to the use of these aids (e.g. economic,
environmental)?
Which policies and legislation should be developed to support a wider participation of families, migrant association, civil society to reduce the phenomenon of
exclusion?
188
Further readings
Miles S. (2005). Inclusive Education key issues and debates: Mainstreaming Disability in
Development. The Example of Inclusive Education. Cambodia.
UNESCO (2010). Education For All: Reaching the marginalized. In EFA Global Monitoring Report. Paris 2010. Available at: http://www.unesco.org/new/en/education/
themes/leading-the-international-agenda/efareport/reports/2010-marginalization/
UNESCO (2011). The Hidden Crisis: Armed Conflict and Education. In Education For All
Global Monitoring Report. Paris 2011.
CHAPTER 8: Non-discrimination and children from non-typical families in Moldova 189
CHAPTER 8:
NON-DISCRIMINATION AND
CHILDREN FROM NON-TYPICAL FAMILIES
IN MOLDOVA
Smiljana Simeunovic Frick, Cezar Gavriliuc
Smiljana Simeunovic Frick is a consultant on children’s
rights, with a focus on children’s participation in decisionmaking processes in various settings. She has been working
with Liechtenstein Development Service (LED) and Child
Rights Information Centre (CRIC) in Moldova since 2011. She
edited a publication of children’s reports to the Committee
on the Rights of the Child in 2012.
[email protected]
Cezar Gavriliuc is the executive director of Child Rights
Information Centre (CRIC) in Moldova. He is one of the CRIC
founders, initiator and coordinator of its numerous projects.
Besides non-discrimination, he has expertise in other areas of
children’s rights, such as children’s participation (especially in
the CRC monitoring and reporting process) and protection.
[email protected]
1. Introduction
Although children live in many different types of family, the idealized traditional nuclear family still is the social norm in Moldova.1 In reality, parents
1
What we term traditional nuclear family is also known as modern nuclear family. “From
a sociological point of view, it is customary to draw a distinction between the traditional,
extended family and the modern, nuclear family, and between both of these and the postmodern family. The traditional family and the modern family are based on ties of blood and
marriage, and differ in regard to the degrees of relation included in the definition of the terms.
The post-modern family encompasses relations that are not based only on blood or marriage
(such as unmarried heterosexual couples and same-sex partners), ‘absent’ family relations
(such as single-parent families), and the ‘bi-nuclear’ family, where parents have separated and
established new nuclear families.” (Merin, 2005:88-89) However, since the modern (nuclear)
family is perceived and promoted as traditional in Moldova, we are going to use the term
traditional nuclear family in this article. In addition, the term “modern” might be mislead-
190
might be biological, adoptive, step, foster, single, a couple, married, divorced,
widowed, remarried, in a partnership, heterosexual, homosexual, transgender, etc. (see Jeltova and Fish, 2005:18). Parents and children can live in the
same, but also in different houses, villages and towns or even countries for a
shorter or longer period of time. Children might not have a parent or parents
at all. Also, they might not keep close and intimate relationship with parents
for various reasons (e.g. violence), but still have families and keep such relationship with other family members. “Yet, social institutions, including schools,
are often steeped in the more traditional family model, and despite efforts to
adapt to the needs of changing and diverse family structures, they often lag behind societal realities.” (ibid, p:18) Therefore, the discussion of the (non-typical) family as a ground for discrimination against children might be relevant
from the perspective of other countries, as well.
As the examples from Moldova discussed in this chapter will show, there
might be some common patterns of discrimination affecting members of
diverse non-typical families, but there might also be differences despite the
similarity of the context. We are going to discuss examples of both direct and
indirect forms of discrimination against two groups: children with parents
working abroad (transnational families) and children living in and leaving
residential institutions (families facing various difficulties). The interpretation of the term “discrimination” and its different forms used in this article are
based on the introduction into this textbook and its fifth chapter. Our understanding of this topic is, furthermore, based on the experience of the Child
Rights Information Centre (CRIC) from Moldova, a non-governmental organization with the mission to advance children’s rights. CRIC has a long-standing experience in working with both children with parents working abroad as
well as care leavers. On the other hand, CRIC supports schools in Moldova to
address various issues, for instance those referring to (non-)discrimination.
Transnational families, i.e. families with members living in different countries and yet keeping intimate relationships are a more recent phenomenon in
Moldova. Lack of employment in the country, demand for unqualified and
low paid workforce in other countries, the opening of the boarders and the
availability of transportation means are factors which are usually invoked to
explain the development of this phenomenon (see for example IOM, 2012).
Less taken into account are questions of how social institutions facilitate or
hinder social inclusion of members of transnational family, children included.
The first part of this chapter will offer an answer to that question focusing on
the educational establishment school. Both direct and indirect discrimination
ing in this context, since it can be used to describe a particular period of time and its specific
societal, economic and ideological features, but denotes also something new, contemporary,
up-to-date.
CHAPTER 8: Non-discrimination and children from non-typical families in Moldova
191
against children in the Moldovan school system whose parents are working
abroad will be described.
The second part will focus on discrimination against residential care leavers in Moldova. In contrast to children with parents working abroad, this
group of children has a longer history. However, the conditions of their existence have constantly changed, affecting also the regime of residential institutions, and thus the situation of children living in and leaving these institutions. Moreover, the question of how the residential institutions contribute to
social exclusion of this group of children has been documented. Yet, despite a
major reform of the child protection system, the residential institutions have
not improved and children living in and leaving these institutions are still
being discriminated against. Some old forms and mechanisms of discrimination against these children will be briefly described, but the article will mainly
focus on forms of discrimination which appeared recently.
Giving the trends and changes in contemporary conditions of living, family forms will probably continue to diversify. In Moldova, for instance, the
reform of the child care and protection system is certainly going to contribute
to a growing number of some family forms, such as foster and adoptive families, and to the visibility of families facing various difficulties. As long as the
school and other social institutions do not change the traditional approach
characterized by bias for the idealized nuclear biological family, children living in non-typical families will continue to be discriminated against. Despite
the self-proclaimed commitments towards social inclusion of all children,
schools will rather continue to contribute to their exclusion. The last parts of
this article discuss some strategies to diminish discrimination and improve
the situation of children discriminated against.
2. Discrimination against children with parents working abroad
The treatment of transnational families, and more particularly of children in
Moldovan schools whose parents are working abroad, could be compared to
societal treatment of other groups of children from non-typical families in
many other countries, for example, with children from lesbian, gay, bisexual
and transgender (LGBT) families in schools in the United States (see Jeltova
and Fish, 2005).
General societal attitude and feelings towards transnational families are
negative, especially when mothers work abroad. An idealized public discourse
about family strengthens the prejudice against transnational families. Usual
manifestations of the negative attitudes towards children from transnational families in Moldova include stereotypical views of transnational families,
lack of communication between the schools and families on issues relevant to
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children and discrimination against children (compare with Jeltova and Fish,
2005). In addition to direct discrimination, these children are discriminated
against also indirectly. The idealized public discourse about family manifests
itself as promotion of the traditional biological nuclear family model through
the curricula. The same bias favouring traditional family model shapes the
general relationship between schools and families.
Schools in Moldova often have stereotypical views of transnational families and their members. Often, they are perceived as a homogeneous group.
Common stereotypes boil down to:
•
•
•
transnational families are financially better off;
children from such families are neglected or abandoned by their parents;
lack of care and love, especially by mothers working abroad, has severe
negative consequences both on children’s well-being and development.
Everything that is considered negative in those children’s behaviour and appearance is very often causally linked to the migration of their parents, by both
the schools and society on the whole (see e.g. Cheianu-Andrei et al, 2011). It
is rarely recognised that there are many factors influencing the situation of
transnational families who often face multiple challenges and problems of all
kinds. Also overlooked are differences in care arrangements of such families.
Examples of transnational families that succeed in keeping intimate relationships are systematically disregarded.
Although some migration arrangements pose challenges to the family relationships, children’s concerns are often not limited to the lack of parental
care and supervision, as it is predominantly understood by the society and the
schools. Reducing needs and interests of children to a “well-defined” relationship to parents, and particularly to mothers, ignores other important issues
pertinent to children from transnational families. A typically ignored issue in
this context is how social institutions, for example school, hinder or facilitate
social inclusion of children from transnational families.
Some teachers are aware of the discrimination children with parents working abroad face in the schools. These teachers explain that some teachers
share the above mentioned prejudice against transnational families and their
members. Their negative feelings (e.g. envy because of the allegedly improved
material situation of transnational families) are reinforced when combined
with beliefs about irresponsible parents (“they care more for money than for
their children”) and self-perception of their own tasks in respect of children
from transnational families (more work for the same small salary). Some
teachers manifest these negative feelings and attitudes by treating children
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from transnational family differently. They create less or no opportunities for
these children to participate in the lessons, to develop and/or demonstrate
their knowledge and skills. Besides, high marks are by some teachers altogether denied to children with parents working abroad, or given only against
fee/rewards (see UNICEF & CRIC, 2006:51). Direct discrimination against
children from transnational families limits both their current and future educational opportunities.
In addition, these children are discriminated against also indirectly. Similar to other countries, school curricula in Moldova do not deal with diverse
family structures. Despite the self-proclaimed mission of schools to equip students with accurate knowledge and information as well as to develop their life
and social skills (see MET & Unicef, 2008:42–44), they fail in respect of some
groups of children also because of the strong bias for the traditional family
model in the curricula (see ibid, p:36–39; see for example Jeltova and Fish,
2005 in respect of children from LGBT families).
Although diverse family models exist in Moldova, the traditional family
model, according to which their members are tied by blood and marriage,
is the single one promoted by the education system. At the same time, this
model has been idealized by the system. For example, in formal and informal
discussions on violence against children organised by CRIC teachers tended
to avoid the topic of domestic sexual violence. The same applies to their work
with children.2 Sexual violence is discussed only as a problem in stepfamilies,
or sometimes foster and adoptive families. Many teachers support a view that
a biological father cannot sexually abuse his children; or rather, that only a
non-biological father is capable of such a deed. By reinforcing the idea that
sexual violence takes place only in other family structures, but not in the family, i.e. in the traditional nuclear family, these teachers contribute to the idealization of this family model. At the same time they devalue other family
structures, e.g. stepfamilies.
In Moldovan schools, all family models are measured against the idealized
traditional nuclear family. Transnational family models do not get any recognition in this normative framework. They are ignored, devalued, or ridiculed
in the schools. Children from transnational families and other non-typical
family models do not feel respected or accepted in the school/classroom environment, nor can they develop a positive self-image. Furthermore, negative perception of their families poses additional challenges in children’s relationships with their parents/carers, and especially with their mothers. Since
2
CRIC has been supporting the Ministry of Education to develop and implement a child
protection policy in the educational system since January 2013. In this framework CRIC has
regular meetings with teachers in form of workshops, seminars, monitoring visits, etc., devoted to the topic of violence against children, its prevention and protection measures.
194
the idealized family model usually assumes traditional gender roles,3 mothers working abroad are perceived as particularly deficient and irresponsible.
The longer they are abroad, the worse. Typical forms of mothers’ care such as
emotional and practical care are either ignored or devalued when provided
from distance/abroad. The same applies to non-typical forms of mothers’
care, e.g. financial. By insisting on the importance of one particular and predefined relationship between mother and child, schools are – paradoxically
and unfortunately – making it more difficult for mothers working abroad and
their children to establish and maintain a good relationship (see e.g. CheianuAndrei et al, 2011:43–53, 111–113, 132).
Besides, the traditional nuclear family is not only idealized and promoted
by the schools, it is also taken as the basis for general school processes. An
analysis of teachers’ regular complains about parents who have been falling
short of their expectations can help us understand how teachers understand
the role of the ideal parents in respect of their children’s schooling. Parents are
thus expected to provide resources such as:
•
•
•
•
•
knowledge and skills (e.g. helping with homework);
time (e.g. for loads of homework, regular communication with the
school);
financial (e.g. formal and informal payments and fees);
social networks (e.g. organizing other sources for support and help);
mobility (e.g. school meetings) (compare with MET & Unicef, 2008:
115–120).
Processes based on such assumptions indirectly discriminate against children from families which do not comply with the ideal and cannot provide
these resources. Many families/parents have difficulties in respect of some or
all listed resources. The same applies to transnational families. Not sharing
the everyday life with their children makes it difficult for many transnational
parents to be involved in all aspects of their children’s schooling intensely
(e.g. homework and meetings). Living abroad, it is often almost impossible
3
According to a study conducted in Moldova: “[a]lmost one third of the parents interviewed (men and women at the same rates) believe that women should be more involved
in housework than men. The remaining third says that both spouses should be responsible.
Concerning financial responsibility, almost half of the parents included in the study (men
more frequently than women) believe that men are more responsible for earning the family’s income.” (Unicef, 2007:63) Similarly, an examination of the primary school system from
the gender perspective concludes: “Most likely, the existing issues in basic education on the
promotion of gender equality can be attributed to the quality aspect of education: indifference
towards or disregard of gender issues, promotion of stereotypes on the gender relationships,
and the lack of didactic materials on these issues. (MET & Unicef, 2008:103; for more information see ibid, p:101-106)
195
for them to attend meetings organized in the school in person. Communication with both their children and the school is in some cases complicated by
high costs of phone calls and transport, and/or lack of time (some parents
are working long hours and have low wages, e.g. care workers). Finally, based
on the stereotype that transnational families have more financial resources,
they are sometimes expected to pay higher (informal) fees. Besides ignoring
other possible expenditures of transnational families in general, this further
discriminates against those who do not earn much, despite working abroad.
Other members of transnational families may face similar difficulties. Carers or persons, acting as resource persons while the parents are abroad, are
sometimes not acknowledged by the schools. In addition, some of them, for
instance many grandparents, lack the knowledge and skills to support children’s schooling. Children who are taking care of sick grandparents and/or
their siblings, and who thus have the main responsibility for the household –
which is often the case for older children, whose mother/parents are working
abroad – also do not comply with the ideal pupil.
Compliance with the ideal family is reflected in the school achievement of
children. Children from families which do not comply usually have poorer
academic achievement (see e.g. MET & Unicef, 2008:26–28). However, the
schools blame families/parents for failure to comply with the ideal, rather
than reflecting on their own role in facilitating or hindering the involvement of family members in their children’s schooling. Schools expect parents
and other family members to adapt to the established processes, rather than
adapting the processes to maximize family involvement and support for their
children’s schooling.
3. Discrimination against residential care leavers
The general societal attitude and feelings towards children from residential
institutions are also negative. Similar to the previous group, the usual manifestations of these attitudes and feelings include stereotypes and myths about
them as well as discrimination.
Both primary and secondary schools often have stereotypical views of
children from residential institutions, e.g. of their needs and interests. They
are also often perceived as a homogeneous group. The partly contradictory,
but common and widespread stereotypes include:
•
•
children from residential institutions are spoiled, and misuse provided
help and assistance;
they are neglected or abandoned both by their families and in the institutions;
196
•
•
due to the difficulties (family, institutions) their personal development
is hampered (poor school achievement, poor communication skills,
conflicts, theft, etc.);
they are going to repeat the failures of their parents – children’s institutionalization is typically considered as their parents’ failure as the reasons which led to the institutionalization are considered as personal
failures of their parents, e.g. inability to provide for family.4
Negative feelings and attitude often result in discrimination against these
children. Their educational opportunities, for example, may be either denied
or limited due to the discrimination. Some secondary school principals openly discourage residential school leavers from applying or enrolling in their
school (suggesting that the school is not good for them or that they will not
be able to keep up with the school demands in terms of learning). Others do it
in a more subtle way by suggesting other schools or actively seeking for some
formal failures in the application to exclude them from the process of enrolment. Those who manage to enrol are at risk of being discriminated against
by teachers. Similar to the findings from the previous group, some teachers provide care leavers with no or less opportunities to develop or demonstrate their capacities.5 In addition, vocational schools expect pupils to have
enough own financial resources (e.g. for school materials), social skills and
contacts (e.g. for organizing internships) (see Milicenco et al, forthcoming).
This indirectly discriminates against care leavers who very often do not have
such resources. Except for orphans, care leavers in Moldova are not provided
with any type of social assistance and support (financial, housing, informational, etc.) although they also are in dire need of such support (see UNICEF,
2011:92, 96–7).
In contrast to the previous group, however, it is recognised that there is
more than one factor which influences the well-being of children from residential institutions. Beside family, institutions are typically discussed as another main factor. Yet, it is overlooked that children living in residential institutions face diverse problems related to their family – from death of parents,
4
“While the acceptance indicator of the poor is quite high, in the society there are certain
prejudices with regard to the poor, which may negatively influence the acceptance indicator in
the near future. Thus, over 40% of respondents believe that most of the poor are lazy and do
not want to work, that in case of most of the poor, it is their fault that they are in that condition, and that most of the poor are drunkards. Over 30% consider that most of the poor have
a low IQ and are aggressive.” (Soros Foundation – Moldova, 2011:8)
5
This description is based on CRIC’s experience of supporting social inclusion of graduates
form residential institutions. CRIC’s comprehensive approach comprises both preparation for
the independent living (starts already in the institutions with development of life and social
skills) and an adequate support during the transition to independence (e.g. in the process of
enrollment and further schooling).
197
over family poverty, to neglect and abandonment. Examples of children who
do keep intimate relationships with their families are commonly disregarded.
On the other hand, the awareness of how the residential institutions contribute to social exclusion is growing in Moldova. Residential segregation is recognized as one of the main mechanism of discrimination against children living in institutions. The movement of children living in residential institutions
is restricted to the area of the institution, which includes a school attached to
it. Residential institutions are sometimes also geographically isolated. This
obviously hinders children’s participation in the life of the community. Lack
of communication strengthens preconceived notions and assumptions of the
communities, and adds to the stereotypes about children living in institutions. Big residential institutions are, moreover, characterized by impersonal
care and relationships between staff and children as well as by inefficient allocation of resources. Much of the scarce funds are used for maintenance of
the often oversized building or for a big number of auxiliary staff. This also
contributes to a worsening of the situation in the institutions, and hence to
social exclusion of this group of children. Based on this knowledge, a major
reform of the child care and protection system in Moldova has started (see
Evans, 2013; UNICEF, 2011; UNICEF, EveryChild and OPM, 2009).
Despite the growing knowledge about the situation of children in residential institutions, their interests and needs are typically reduced to the
re-establishment of family relationships, and/or to leaving the institutions.
An evaluation of the reform of the residential child care system in Moldova
2007–2012 perceives this reduction as a shortcoming of the reform: “The reality is that fewer children are being denied their right to live in a family than was
the case in 2007 [when the reform started]. But children have other needs as well
as rights; the need for protection from abuse and exploitation, to an adequate
diet, to shelter, to education, adequate clothing, emotional warmth and tenderness. Whether those needs of children reintegrated to their families, or placed in
substitute families, or prevented from admission to institutions are being met is
another matter.” (Evans, 2013:33)6
In spite of growing public attention to this group of children, some relevant
topics are still being neglected. The topic of how the education of children in
residential institutions or rather the school curricula hinder or facilitate their
6
“However, that is not to say that all the rights of those children [reintegrated, prevented
from admission to institutions] have been respected. Only a detailed study of reintegrated
children or children prevented from admission will reveal just how the other rights of children
have or have not been respected. A particularly important children’s right in the context of
residential childcare reforms and deinstitutionalisation is the right of children to participate
in decisions affecting them. Interviews with children who had been integrated with biological
or extended family suggest that some of them felt that right was not fully respected.” (Evans,
2013:43; see also p: 63; 71)
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social inclusion is mostly ignored. Furthermore, the children who have not
been reintegrated with their families or family-like structures, but age out of
the institutions have been forgotten both in the public discussion and in the
reform.
Similar to children from other non-typical families, curricula biased towards idealized traditional family model discriminate indirectly against children living in institutions. These mainstream curricula are followed also by
the schools attached to the residential institutions. Similar to the previous
group, this group of children is confronted with an education, which constantly conveys the message that they are deficient and failures. Not surprisingly, they cannot feel respected or accepted in such a school environment,
nor can they develop a positive self-image. Negative societal perception results in a negative self-perception of these children. As in the case with the
previous group, the negative self-perception has an amplifying effect. It has
a negative effect not only on their learning (see Marzano and Heflebower,
2012:24), but also on their social relationships (familial and others).
In addition, the emphasis on the significance of family for one’s identity in
the school curricula discriminates against children who do not have family or
whose understanding of the family differs from the normative understanding.
Such emphasis adds to the negative self-image of these children and, hence,
weakens their self-confidence. Similar to the notion of the family, Moldovan
curricula operate with a predetermined and hierarchical notion of identity.
According to that notion, family and ethnicity are more significant than e.g.
peer group(s), hobbies and interests, religion, etc. In such circumstances children neither have space to explore nor to self-determine what is important for
their identity, how or in which extent.
Besides the indirect discrimination in the educational system, children living in residential institutions face similar discrimination in the reform of the
child protection system in Moldova. This reform is also biased towards (more)
typical/traditional family forms: biological, extended, foster, adoptive, etc. Although, it has to be noted that the reform of the child protection system in
Moldova was developed as a reaction to the previous (Soviet) bias for institutional care, the one-sidedness of its current approach,7 however, discriminates
indirectly against children who are already in the institutions, whose chances
for family reunion are rather low, and who are, therefore, most probably going
to age out of the institutions. Children with disabilities, behavioural problems
(see Evans, 2013:34, 43, 50), older children and children who spent a lot of
7
The above mentioned reduction of children’s interests and needs to those of living in a
family could be understood as part of the same tendency of the reform. Family is treated not
only as a necessary, but sufficient condition for children’s well-being and development. Such
a treatment suggests an idealization of the family in the current child protection system in
Moldova.
199
time in the institutions, often find themselves in this group of children. Since
the reform of the child protection system has brought no essential change in
the functioning of the residential institutions so far, the institutions still contribute to social exclusion of children living in these institutions in the same
manner as before the reform.
Despite the knowledge of the deficiency of the residential institutions in
Moldova, there have been no major improvements of living conditions in
these institutions. Children have not been provided with adequate care and
education. They are leaving institutions unprepared for independent life (e.g.
without developed life and social skills and without a transition plan). The
adoption of minimum standards for care, education, and socialization of children in residential institutions (see RMG, 2007) has not led to any significant
improvements, since no resources have been allocated for their implementation. Even the reform agenda for the present child protection system does not
foresee a provision of any assistance and support for the residential care leavers (see UNICEF, 2011: 92, 96–7). When leaving public care children are not
only unprepared, without or with only limited opportunities for housing and
further education, they are also confronted with the deteriorated societal image of the residential institutions. The bad image of the institutions reinforces
negative societal attitudes and feelings towards care leavers and puts them at
risk of further discrimination (see above in respect of schooling).
The knowledge about the deficiency of residential institutions has hence –
paradoxically and unfortunately – contributed rather to the worsening of the
situation of children living in and leaving these institutions. This is typical not
only for Moldova. It has been more and more acknowledged that “[a] ‘branding’ of institutionalized care as the least favoured environment for children
might tend to reinforce these tendencies and contribute to the stigmatization of
these children” (Cantwell and Holzscheiter, 2008:13; see also the Committee
on the CRC, 2005:6).
Negative societal image of the institutions seems not only to discourage
the support for a reform of these institutions, but also to complicate the establishment of support and assistance programmes for care leavers. Without
even asking the affected children, it is generally assumed that the children
ageing out of the badly functioning residential institutions want to leave these
institutions and the protection system in general as soon as possible in order
to start an independent life. Together with the socially predominate understanding of the concept of independent life (a self-sufficient life, for which one
would not need any help and support) this assumption provides a basis for
denying social support and assistance to care leavers. This practice discriminates against those care leavers who do not have any or not enough internal
200
or external resources and thus can not manage without (additional) social
support and assistance.
4. Anti-bias curriculum
Similar to other countries, teachers in Moldova are getting more aware of the
growing differences among pupils in their classrooms. Besides coming from
various family types, the children in one classroom may now differ also in
respect of the languages they speak, ethnicity, religion, abilities, etc. The diversity in the classroom reflects the diversity of the Moldovan society. Family
structures vary more and more; recently developed forms and types of family in Moldova range from multi-generational to single parent family, from
transnational to multicultural families, etc. Additionally, changes in the educational policies, especially the concept of inclusive education, have significantly contributed to the diversification of the classroom composition. The
number of Roma children and children with disabilities in a typical classroom
has increased due to the new concept.
At the same time, teachers in Moldova are aware of their limited competences to deal with this growing diversity. Their initial training has been
founded on the idea of a homogeneous society, according to which existing
differences have been ignored or conceptualised as deficiencies. Based on this
idea, some groups of children have been segregated, e.g. those with disabilities or those without parents. This helped keeping the schools and classrooms
more homogeneous and the (re)production of dominant values, beliefs and
behaviour more likely in the past. However, the awareness of negative consequences of this practice has been emerging in Moldova. Instead of a homogeneous society, this traditional approach to education has rather contributed
to the (re)production of hierarchical society, serving the dominant societal
group(s) and discriminating against the others (see Apple, 2004:59–62). More
and more political and social actors thus agree that the underlying approach
of educational system in Moldova should be changed. In order to be more responsive to the challenges of the changing composition of classrooms, teachers have to be equipped with a curriculum more sensitive to diversity. In order
to be able to adapt their own teaching practice to the needs and interests of
children with various backgrounds, teachers have to be equipped with adequate methods and tools.
A starting point for such a change both in teachers’ education and training as well as in their everyday work is self-reflection. Self-reflection is the
starting and central point of the anti-bias approach to education. Instead of
blaming children for being different and unable to adapt to school, the antibias approach encourages teachers to think about how children with different
201
backgrounds are treated by the schools and how schools can adapt to their
pupils’ individual needs and interests. Based on this self-reflection, the teachers are supported to take action against discrimination.
Louise Derman-Sparks, the founder of the anti-bias approach in the late
eighties of the 20th century, defined it as follows:
„[Anti-Bias is an] active/activist approach to challenging prejudice, stereotyping, bias, and the ‚isms’. In a society in which institutional structures create and maintain sexism, racism and handicappism, it is not sufficient to be non-biased (and also highly unlikely), nor is it sufficient to
be an observer. It is necessary for each individual to actively intervene,
to challenge and counter the personal and institutional behaviors that
perpetuate oppression.” (Derman-Sparks, 1989:3, quoted from Gramelt,
2010:102)
The development of the anti-bias concept started in the USA in the late eighties. A group of kindergarten teachers led by Louise Derman-Sparks developed
a concept of early childhood education, which takes into account cultural
diversity. They published Empowering young children. Anti-Bias-Curriculum
and suggested it as a conceptual framework for action for educational institutions (see Gramelt, 2010:101). The approach has considerably developed in
the meantime. Some elements are now regular part of kindergarten curriculum in some countries, and it has also been adapted for the primary school.
Its elements have also been used in other settings.8
The main aim of this approach is to develop the competences of both pupils and teachers to deal positively with diversity.
„Curriculum goals are to enable every child: to construct a knowledgeable, confident self identity; to develop comfortable, empathetic, and just
interaction with diversity; and to develop critical thinking and the skills
for standing up for oneself and others in the face of injustice.” (DermanSparks, 1989:ix, quoted from Gramelt, 2010:102)
One advantage of the anti-bias approach is its strong focus on institutional
change. Since teachers are perceived as key agents of this change, its focus
lies on the development of their capacities to actively engage with diversity,
including the abilities to recognize and fight against any discriminatory treatment.
8
The anti-bias approach developed rather from the practice. See Gramelt, 2010 for a rare
documentation of such a process with focus on Germany.
202
CRIC has introduced basic components of the anti-bias approach in its
various work with schools and teachers. As part of this effort, a training
course on non-discrimination with a methodological guide for civic education teachers has been developed recently. Taking the Moldovan context into
account, the course helps teachers to analyse diversity in school and in classrooms and to examine how the current curricula, the typically used teaching
methodologies and general school processes facilitate or hinder inclusion of
children with different backgrounds. Another important aspect comprises
support for teachers in developing the awareness of ones own background, attitudes, expectations, etc. Finally, its central part is the development of strategies to tackle discrimination such as taking action against any over- or underrepresentation, avoid imbalance and offer multiple perspectives.
In the framework of the non-discrimination course, the civic education
teachers elaborated criteria for developing, implementing and evaluating
their educational activities in order to facilitate inclusion, non-discrimination and participation of all children. Besides being relevant for the children,
topics of the educational activities should be presented in a constructive and
positive manner, and with respect for every child and their family members,
regardless of the situation or difficulties currently experienced by them. In
respect of the teaching strategies, the civic education teachers stressed, for
example, that the methods used should create opportunities for involving all
children. Therefore, a variety of methods should be combined so that every
child gets a possibility to express its own thoughts, feelings, experiences and
an empathetic interaction can be stimulated.
Discussing the criteria that will help them to establish an adequate relationship with their pupils, teachers were explicit about avoiding labelling and
value-laden comments. In a similar vein, they suggested that teachers have to
intervene in case of any discriminatory behaviour against any child not only
during the lessons, but also during the breaks, meetings with school staff or
parents/carers, etc.
The civic education teachers reported that the criteria are very useful, especially when elaborating and evaluating the lessons. However, they reported difficulties in meeting these high standards in their everyday teaching.
Whereas their awareness regarding the diversity and (non-)discrimination
has increased, teachers require continuous support and systemic changes (e.g.
a revision of the current curricula, an anti-discrimination school policy, etc.).
203
5. Diversity of family structures and prevention of stigmatization of
children living in and leaving residential institutions
One of the first Days of General Discussions organized by the Committee on
the Rights of the Child (hereafter the Committee) was devoted to the role of
the Family in the promotion of children’s rights.
“On the basis of different interventions, it would seem hard to argue for a
single notion of the family. Through the influence of economic and social
factors, and of the prevailing political, cultural or religious traditions, the
family has been shaped in a diversity of ways and naturally faces different
challenges or living conditions. Would it therefore be acceptable to consider that only some kinds of family or family situations deserve assistance
and support from the state and society i.e., nuclear, extended, biological,
adoptive or single parent families? Could it be considered that only in
certain circumstances would the family or family life have decisive social
value? On the basis of what criteria: legal, political, religious or other?
Would it be possible to favour a perspective where only under certain conditions would children be given the opportunity to enjoy rights which, in
fact, are inherent to the dignity of their human nature?
All these questions seem to place the essential value of the principle of
non-discrimination in the forefront of the general discussion.” (Committee on the CRC, 1994:35)
The acknowledgement for diversity of family structures is reiterated also in
the Committee’s Recommendations based on the 2005 Day of General Discussion, which was devoted to the topic of children without parental care.
Consequently, the Committee encourages state parties to pay more attention
and provide support to those family types which are rarely acknowledged in
domestic laws and practices; a prime example for this practice would be to offer help to extended families, e.g. in cases where the grandparent(s) take over
the responsibilities for child-rearing (see Committee on the CRC, 2005:3).
Within the same framework, the Committee also discussed the situation
of children living in institutions.
“[T]he question was raised whether the dogmatic implementation of the
principle that placement in an institution must be the last resort may
result in stigmatization of children in, or about to be placed in, such institutions. Such practice may harm the development of the child in need
of alternative care and leave the institution in which the child is ultimately placed with an impossible mission. A careful and multidisciplinary
204
assessment of the needs of the child in need of care and protection must
inform the decision on whether out-of-home care is in the best interests of
the child and on which form it should take. The Committee recommends
that special attention is given to this question in the development of the
standards suggested in part IV of this document.
The Committee acknowledges that it is challenging to change the deeprooted ideology behind the institution model but it encourages States parties to take realistic steps with a view to changing traditional institutions,
for instance, by establishing smaller specialized units within the institutions, increasing the number of professionals working with and for children and providing these professionals with systematic training.” (Committee on the CRC, 2005:6)
Besides the improvement of the conditions in the residential institutions,
some authors suggest that in order to prevent stigmatization of residential
institutions, or rather children living in those, the interpretation of possible
alternative care arrangements listed in the Article 20 of the Convention on the
Rights of the Child as implicit ranking should be avoided. Cantwell and Holzscheiter argue that suitability and necessity of an alternative care arrangement should not be assessed on the basis of their pre-determined hierarchy,
but rather taking into account “their ability to respond effectively and appropriately to the specific circumstances, needs and wishes of an individual child at
a given time in his or her life […] for example, foster care too has to be assessed
as to its suitability and necessity: serial breakdowns in foster placements are but
one indication that it is not suitable for some children. Thus, if an institution
can be deemed ‘suitable’, and the child’s placement there ‘necessary’, there may
be grounds for questioning why that solution would automatically be relegated
to ‘last resort’ status.” (Cantwell and Holzscheiter, 2008:55–56)
5. Conclusion
The Moldovan educational system has difficulties recognising the variety of
family forms existing in the country. General and specific needs and interests of children from non-typical families are being systemically disregarded
in their schooling. Yet, the discriminatory treatment of these children in the
schools is usually overlooked when their educational underachievement and
social exclusion are discussed.
Due to the increasing diversity in contemporary societies, the ability to
respond to diversity has become a key competence in our everyday lives.
Consequently, its significance for education in general and for the curriculum
205
in particular is increasing (see OECD, 2005:12–13). An anti-bias approach
helps schools to create more favourable conditions for the development of all
children, including those with diverse family backgrounds. Existing family
structures need to be recognized not only by the schools but also by other
social institutions. The Committee encourages state parties to actively adapt
their institutions to meet the needs also of those family types that are rarely
acknowledged in domestic laws and practices. Finally, as long as residential
care exists/persists, it should also be socially acknowledged and supported as
an environment for children’s well-being and development.
References:
Apple, W. M. (2004). Ideology and Curriculum. New York: Routledge Falmer.
Cantwell, N. and Holzscheiter, A. (2008). Article 20: Children Deprived of Their Family
Environment. In Alen, A., Vande Lanotte, J., Verhellen, E., Ang, F., Berghmans E. and
Verheyde, M. (eds.), A Commentary on the United Nations Convention on the Rights of
the Child. Leiden: Martinus Nijhoff Publishers.
Cheianu-Andrei, D., Gramma, R., Milicenco, S., Pritcan, V., Virginia Rusnac, V. and Vaculovschi, D. (2011). Specific needs of children and elderly left behind as a consequence
of migration. ”http://www.iom.md/attachments/110_necesit_cop_virst_en.pdf ”. Accessed 20 June 2014.
Committee on the CRC (1994). Day of general discussion: Role of the Family. “http://www.
ohchr.org/Documents/HRBodies/CRC/Discussions/Recommendations/Recommendations1994.pdf ”. Accessed 17 March 2014.
Committee on the CRC (2006). Day of general discussion: children without parental care.
“http://www.ohchr.org/Documents/HRBodies/CRC/Discussions/Recommendations/Recommendations1994.pdf ”. Accessed 17 March 2014.
CRIN (2009). Guide to non-discrimination and the CRC. “http://www.crin.org/docs/
CRC_Guide.pdf ” Accessed 17 March 2014.
Derman-Sparks, L. and the A.B.C. Task Force (1989). Anti-Bias-Curriculum. Tools for
EMPOWERING Young Children. Washington D.C: National Association for the Education of Young Children.
Evans, P. (2013). Evaluation of Implementation of the National Strategy & Action Plan
for the Reform of the Residential Childcare System in Moldova 2007–2012. “http://
www.unicef.org/evaluation/files/Moldova_2012_003_Evaluation_of_Child_Care_
Reform_ENG.pdf ” Accessed 17 March 2014.
Gramelt, K. (2010). Der Anti-Bias-Ansatz. Zu Konzept und Praxis einer Pädagogik für
den Umgang mit (kultureller) Vielfalt. Wiesbaden: VS Verlag für Sozialwissenschaften.
International Organisation for Migration (IOM) (2012). Extended Migration Profile of the
Republic of Moldova. “http://publications.iom.int/bookstore/free/110_emp_report.
pdf ” Accessed 17 March 2014.
Jeltova, I. and Fish, M. C. (2005). Creating School Environments Responsive to Gay, Lesbian, Bisexual, and Transgender Families: Traditional and Systemic Approaches for
Consultation. Journal of Educational and Psychological Consultation, 16(1&2), 17–33.
206
Marzano, R. J. and Heflebower, T. (2012). Teaching and Assessing 21st Century Skills.
Bloomington: Marzano Research Laboratory.
Merin, Y. (2005). The Right to Family Life and Civil Marriage Under International Law
and its Implementation in the State of Israel. Boston College International and Comparative Law Review, 28(1), 79–147.
Milicenco, S., Oceretinii A. and Cristei, A. (forthcoming). Bunastarea copiilor – stidenti ai
scolilor profesionale din Republica Moldova. Chisinau.
Ministerul Educatiei si Tineretului al Republicii Moldova (MET) & UNICEF (2008).
Baseline Study on Basic Education in the Republic of Moldova from the perspective
of Child-Friendly Schools. http://www.unicef.org/moldova/educatia-de-baza.en.pdf.
Accessed 20 June 2014.
OECD (2005). The Definition and Selection of Key Competences. Executive Summary.
“http://www.oecd.org/pisa/35070367.pdf ” Accessed 17 March 2014.
Republica Moldova Guvernul (2007). HOTARIRE Nr. 432 din 20.04.2007 pentru aprobarea Standardelor minime de calitate privind îngrijirea, educarea şi socializarea copiilor
din instituţiile de tip rezidenţial. “http://www.aliantacf.md/ro/resurse/hg-432-din20042007-pentru-aprobarea-standardelor-minime-de-calitate-privind-Óngrijirea”.
Soros Foundation – Moldova (2011). Perceptions of the population of the Republic of Moldova on discrimination: sociological study. “http://www.soros.md/files/
publications/documents/Studiu_sociologic_EN.pdf ”. Accessed 20 June 2014.
UNICEF (2007). Violence against children in the Republic of Moldova. Study Report.
“http://www.unicef.org/moldova/ro/Violence_against_children_ro.pdf ”. Accessed 20
June 2014.
UNICEF (2011). Situation Analysis of Vulnerable, Excluded and Discriminated Children
in Moldova. “http://www.unicef.org/moldova/Raport_ENG.pdf ”. Accessed 17 March
2014.
UNICEF & CRIC (2006). The Situation of Children Left Behind by Migrating Parents.
“http://childrights.md/files/publicationsen/cric_study_report_en_2006.pdf ”.
UNICEF, EveryChild and OPM (2009). Assessment of the Child Care System in Moldova. “http://www.unicef.org/ceecis/Moldova_child_welfare_assessment_-_final_
2009_09_ENG.pdf ”. Accessed 17 March 2014.
•
•
•
How are children with parents working abroad and care leavers discriminated
against in the schools in Moldova? Which of their rights (as according to the CRC)
have been impaired due to the discrimination?
What are characteristics of an anti-bias approach (aims, focus, steps for teachers,
children, etc.)? Watch also the video: Anti-Bias Curriculum: at “https://www.youtube.com/watch?v=Tx1HF_rh95c”.
What is your attitude towards family and its significance for ones/children’s well-being? Describe a typical family according to your understanding? How many families
you are in contact with match with your description of the typical family? What is
the nature of your contact with non-typical families and children from such families;
•
•
•
•
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how much contact, what type (private, professional), etc.? How similar/different are
they to the typical family you described?
Which different types of family exist in a country of your interest? How are these
different types represented in books and other materials used in the school? Which
family structures are over/under-represented in these materials? Which stereotypical
views are connected with some family types?
What is the image of residential institutions and the children living in these institutions in a country of your interest? Make your own tableau of stereotypes by an analysis of popular websites and newspapers. How do these statements characterize these
children? How are structural reasons reflected in descriptions of their situation?
What is the Committee’s perspective on the various family structures? Analyse the
Committee’s Concluding Observations for issues and recommendations related to
different family forms and discrimination. Analyse the Committee’s Concluding
Observations also for the issues and recommendations related to discrimination of
children in alternative care, including residential institutions and care leavers.
Analyse the list of grounds of discrimination against children mentioned in the
Committee’s Concluding Observations (see CRIN, 2009:5): Which of them are family related? What is the situation of the mentioned families in a country of your interest? Are there other family forms at risk of discrimination known to you but not
on the list?
Further readings
Courtney, M.E. and Iwaniec. D. (eds.) (2009). Residential Care of Children. Comparative
Perspectives. New York: Oxford University Press, Inc.
Derman-Sparks, L. and Ramsey, G.P. (2011). What If All the Kids are White? Anti-bias
Multicultural Education with Young Children and Families. New York: Teachers College Press.
SOS Children’s Villages International (2012). When care ends. Lessons from peer research. ”http://www.sos-childrensvillages.org/what-we-do/childrens-rights/imatter”.
Accessed 23 June 2014.
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Carlos Villagrasa Alcaide, Isaac Ravetllat Ballesté
CHAPTER 9:
HOW CHILDREN ARE DISCRIMINATED IN
THE USE OF THEIR RIGHTS
Carlos Villagrasa Alcaide, Ph.D. is Tenured Professor of Civil
Law and Family Law at the School of Law, Barcelona University
in Spain where he is also Director of Master on Family Law
and Childhood. President of the Defence of Children and
Adolescents’ Rights Association; Judge of the Provincial Court
of Barcelona; Coordinator and Professor of Civil Law at the
National University of Distance Education; Director of Legal
Research at the Institute of Childhood and Urban World Consortium. [email protected]
Isaac Ravetllat Ballesté Ph.D. is Professor of Civil Law and
Family Law the School of Law, Barcelona University in Spain,
where he is also Coordinator of Master on Family Law and
Childhood; General Secretary of the Defence of Children and
Adolescents’ Rights Association; Judge of the Provincial Court
of Barcelona; Academic Coordinator and Professor of Civil and
Roman Law at the National University of Distance Education;
Consultant for legislation reform about children rights (Parliament of Catalonia). [email protected]
1. Introduction
Interest in the concept of children’s rights has grown significantly during the
last decade. Two factors appear to be driving a greatly heightened awareness
of children as an important minority group with rights of their own. In the
first place, there is an increasing appreciation, amongst laypeople and professional, of the States’ obligations under the United Nations Convention on the
Rights of the Child(UN CRC). Secondly, a greater rights consciousness has
been generated by the implementation, at the national level, of the mentioned
International Treaty. The fact that children are, like adults, entitled to claim
the rights guaranteed by not only the international, but also the internal bodies, has had an extraordinary impact on adult’s perceptions of children’s status.
Many of those who teach and work with legal principles affecting children
are fully committed to the notion that children are rights holders. Nevertheless, these professionals may be unclear how to promote such a notion in a
way that enhances children’s lives at a practical level, rather than allowing it
CHAPTER 9: How children are discriminated in the use of their rights
209
to remain a theoretical ideal, which can mean to introduce a sort of age-based
discrimination. The law does not stand still and the purpose of this teaching material is to consider the extent to which the emerging legal principles
can be used to achieve such a goal. Children, like other minority groups, are
affected by various branches of law, all with their own distinctive character.
Consequently, although there is a rapidly growing body of international human rights law, we must also pay attention to domestic case law and legislation.
This article will consider the developing law in Europe within a traditional
range of legal topics, which reflect children’s own activities and the principles
used to assist them. The document will be divided into different chapters all
broadly considering the extent to which the law acknowledges the growing
maturity of adolescents and their capacity for independent thought and action. These chapters will review the extent to which the law encourages adults
to consult adolescents and older children over decisions regarding their present and future and the scope they are given to reach legally binding decisions
of their own.
The last part of this chapter will treat the way in which the law balances the
rights of younger children who are incapable of making decisions for themselves, against parents’ powers and responsibilities regarding their upbringing. It will consider how the law’s support for parental autonomy, at times,
hampers the legal fulfilment of children’s own rights in various contexts. Finally, we want to offer the readers a hypothetical example of children’s active
citizenship to empower children to make use of their rights. We reach this aim
by an imaginary story that involves kids themselves.
2. Children as rights holders
The Preamble to the UNCRC states the idea that a child should be afforded
the necessary protection and assistance so that he/she can fully assume his/
her responsibilities within the community. This characteristic feature or goal
of the UNCRC requires that the child is fully recognized as a rights holder
who shall be allowed to exercise her/his rights. But in doing so, the parents
have the responsibilities, rights and duties to provide the child in a manner
consisted with her/his evolving capacities with appropriate direction and
guidance (Articles 5 and 14 UNCRC).
In the recognition of children as rights holders the concept of evolving capacities is crucial. This idea represents a recognition of the growing autonomy
of the child and the need to respect the gradual acquisition of independent
exercise of the rights enshrined in the UNCRC such as the right to freedom
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of expression, the right to freedom of thought, conscience and religion and
freedom of association.
It should be noted, however, that the concept of evolving capacities has
implications for all rights in the UNCRC and demands significant changes
at all levels of society. It represents a fundamental challenge to conventional
attitudes towards children, questioning some of our deeply held assumptions
about children’s needs, children’s development, protection of children and
children’s agency.
The arbitrary age limits traditionally imposed by the law in the different
European countries are often difficult to justify. For example, the age of criminal responsibility, the age in which a person may consent to medical treatment, marry (with parental or judicial consent), smoke, buy alcohol or leave
full-time education. Whilst, in most of the European countries, at 17 teenagers may drive a motorbike, they must wait until they are 18 to vote, sign leases
and claim income support. Many adults lack the capacity to exercise all the
rights that, as a adult citizens, they are automatically entitled to. Contrarily,
countless children who, despite having that mental competence, are denied
them, solely by virtue of their minor status.
Competence for decision-making will vary enormously, depending on a
variety of factors, such as peer pressure and family environment. It not only
depends on the maturity and social circumstances of the person reaching the
decision but also on the content and context of the decision in question. Thus
whilst a person of any age may need a variety of skills, and therefore a relatively sophisticated type of competence before being able, for example, to consent
to surgery, they will require a much lower level of competence to activate a
machine (Fortin, 2009: 82–86).
Alderson’s research with children in hospital led her to conclude that children develop the competence to make complex decisions about their medical
treatment at far earlier ages than adults realise or accept. Indeed she argues
that since many children exceed many adults in qualities such as intelligence,
ability and prudence, differences between adults and children lie mainly in
social beliefs about childhood, rather than in children’s actual abilities (Alderson, 1993: 190).
Research on older adolescent’s psychological development suggests that
a different approach might be justified for those at the upper end of adolescence. It certainly supports those who argue that the current law is too restrictive in its approach of recognising the decision-making capacity of older
children. Some writers, like Lindley, argue in favour of a more sophisticated
approach to children’s liberation. In his view there are good reasons for rejecting the claim that all children should have equal rights to self-determination
211
because of the significant correlation between childhood and incompetence
(Lindley, 1989: 79).
The same author also considers it difficult to justify paternalistic restrictions on all adolescents under the age of 18, simply due to their minor status.
He suggests that by the time children are 13, they are sufficiently stable and
have sufficient conceptual competence to be able to have the objectives of a
life plan. On that basis, he advocates that laws relating to the 13- to 16- year
old category should be liberalised. Citing the high rates of adolescent sexual
activity below the age of 16, he criticises the laws, which prevent girls under
the age of 16 from consenting to sexual intercourse. He also argues that the
high levels of truancy in schools indicates that young people between the ages
of 13 and 16 should not be forced to remain in full-time compulsory education, but should be allowed to take full-time employment instead. Furthermore, in his view, adolescents should be given political education in schools
and allowed to vote (Lindley, 1989: 88–92).
There is a need for considerably greater clarity in the legal principles applying to adolescents and for the law to maintain a better balance between
allowing young people as much freedom as they have the capacity for, whilst
restraining them from making choices which restrict their own future development.
The law provides a series of mixed messages about the limits to parental
authority once children reach adolescence. No doubt this incoherence springs
from the fact that society itself is uncertain about how parents should adapt to
their children’s growing maturity.
Knowledgeable parents might argue that they are supported in such an approach by Article 5 of the UN CRC. This requires governments to respect parent’s rights and duties to provide “appropriate direction and guidance in the
exercise by the child of the rights recognised”. Nevertheless, parents should
not overlook the article’s qualifying phrase, which emphasises that parental
direction and guidance should only be provided “in a manner consistent with
the evolving capacities of the child”. Furthermore, Articles 12, 13 and 14 of
the CRC all emphasise the child’s right to develop a capacity for independent
thought and action.
Although domestic legislation could usefully encourage changes in parental
attitudes, in a lot of occasions it has signally failed to seize the opportunity to
do so. Admittedly, the substitution of the new concept of “parental responsibility” for the old “parental rights and duties” reflects the everyday reality of being
parent; it also discourages that children are under parents’ absolute control.
Nevertheless, the failure to impose a duty on parents to consult their children
over important matters regarding their own future is really disappointing.
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One important step toward the idea of considering children as right holders who shall be allowed to exercise their rights by themselves was made by
the Gillick case in the United Kingdom. This case quickly became international news, because it was the first time that Courts recognized child’s capacity, and became referred to as “Gillick case”.
Indeed, in 1982 Mrs Victoria Gillick took her local health authority (West
Norfolk and Wisbech Area Health Authority) and the Department of Health
and Social Security to court in an attempt to stop doctors from giving contraceptive advice or treatment to under 16-year-olds without parental consent.
The case went to the High Court where Mr Justice Woolf dismissed Mrs
Gillick’s claims. The Court of Appeal reversed this decision, but in 1985 it
went to the House of Lords and the Law Lords (Lord Scarman, Lord Fraser
and Lord Bridge) ruled in favour of the original judgement delivered by Mr
Justice Woolf:
“...whether or not a child is capable of giving the necessary consent will
depend on the child’s maturity and understanding and the nature of the
consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed,
so the consent, if given, can be properly and fairly described as true consent.”
The case authority provides that the child’s voice is heard and listened to in
court, when he reaches a sufficient understanding to be capable of making up
his own mind. Whether a child is so capable has been held to be a question
of fact.
3. Lessons from Gillick
The growing influence of the Gillick case is reflected not only in the different
European domestic legislation in force, but also in the case-law. That is the
main reason that leads us to point out the principles emanating from this
important decision of The House of Lords.
The House of Lord’s decision in Gillick v. Norfolk and Wisbech Area
Health Authority established new legal boundaries for parents’ relationships
with their adolescent children. It reflected the view that the law should encourage parents to stand back and permit their adolescents to reach important decisions with as little interference as possible.
A recurring concern is that by promoting the rights of children, law and
policy will undermine the status and authority of parents. Anxieties such as
these drove Victoria Gillick and Sue Axton to seek legal confirmation of their
213
right to bring their daughters as they thought fit (Gillick v. Norfolk and Wisbech Area Health Authority, 1986).
The Gillick decision sent a strong message to parents that their own rights
of decision-making are constrained and that they have a duty to allow their
adolescents to make a gradual transition into adulthood. An interpretation
of the law in these terms does not, however, provide clear guidance over the
point at which adolescents reach a stage of maturity when they can reach
decisions for themselves. Indeed, the weakness of the concept of Gillick competence is its uncertainty.
Arguably the European Convention on Human Rights and Fundamental
Freedoms (ECHR) strengthened parents’ ability to control their teenage offspring by reference to their own rights under Article 8 ECHR. But contrarily,
teenagers might themselves claim Convention rights against their parents.
How would Mrs Gillick have fared if she had gone to court after the implementation of the Human Rights Act (1998), instead of when she did, in the
mid-1980s? Some of these issues were clarified when Ms Axon adopted a very
similar position to that of Victoria Gillick in 2006.
R (Axon) v. Secretary of State for Health and the Family Planning Association provided Silver J with a good opportunity to show how the Gillick
principles regarding the interrelationship between parents and adolescents
can be aligned within the ECHR framework of rights. Ms Axon had claimed
that parents are legally responsible for all aspects of their children’s welfare,
including matters to do with their health and sexuality, and that if doctors
keep consultations with children secret, this undermines parents’ ability to
advise and help them on sexual matters. She also claimed that such rights and
responsibilities are reinforced by Article 8 of the ECHR.
In Silver J’s view, a close reading of the Gillick decision refuted all Ms
Axon’s claims; it remained good law and was unaffected by Ms Axon’s right
under Article 8 of the ECHR to have her family life respected by the state. His
conviction that any parental right or power under Article 8 is no wider than
that delineated by the common law, led to his translating their Lordships’ idea
that parental authority dwindles as the child develops decision-making skills
into the confines of Article 8.
To conclude, Ms Axon’s parental rights under Article 8 of the ECHR, to
advise and guide her daughters had therefore terminated on their attaining
Gillick competence. This idea of parents simply losing their rights to respect
for family life, as soon as their children gain sufficient understanding to reach
decisions for themselves, is not fully supported by Strasbourg jurisprudence.
Their Lordships’ proposition in Gillick that parents lose all rights to influence their son or daughter regarding any decisions reached within his or
her competence was not received with enthusiasm by parents, or indeed, by
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a conventional and paternalistic judiciary. Only a short time elapsed before
the Court of Appeal undermined their Lordships’ attempt to ensure that parents respected their adolescents’ capacity for autonomy. In different cases,
the subject of the application was resisting life-save medical treatment and
in each the Court of Appeal held that under its inherent jurisdiction, a court
can override a young patient’s wishes and authorise life-saving treatment. On
the one hand, the Court of Appeal, in Re R (a minor) (wardship: consent to
treatment), authorised the compulsory use of anti-psychotic drugs to treat a
15-year-old suffering from increasingly paranoid and disturbed behaviour.
On the other, the Court of Appeal, in Re W (a minor) (medical treatment:
Court’s jurisdiction), authorised the compulsory treatment of a 16-year-old
in a dangerously anorexic state.
4. Legal age limits
The law reflects a sense of deep confusion regarding the point at which children should be allowed to take full responsibility for their activities. Several
European legislations, such as Spain, Italy, France or Portugal, bar all those
under the age of 18 from full legal “emancipation”. A range of disqualifications makes all minors of any age broadly incapable of entering into a legally
binding contract, hold a legal state in land, make a will or vote. Nevertheless, a
number of adults’ freedoms are available to 16 and 17-year-olds, leaving those
under the age of 16 the subject of much wider restrictions.
4.1. Under 16 years old
For those under 16, a series of legislative provisions have, over the years,
thrown up a collection of bizarrely arbitrary age limits governing a range of
activities, such as buying a pet (allowed at the age of 12) and riding a horse
without a safety helmet (allowed at age of 14). A 16 year-old can, inter alia,
buy lottery tickets and aerosol paint, sell scrap metal and join the army). The
simple explanation for this legislative hotchpotch is that the qualifying ages
have been adopted on ad hoc and piecemeal basis.
Especially interesting and of more practical significance are the provisions
of the criminal law making the age of 16, 15, 14 or even 13 govern the point
at which young people can agree to sexual intercourse. In Europe, countries
who have the age of consent set at 16 include Cyprus, Finland, Georgia, Latvia,
Lithuania, The Netherlands, the United Kingdom, Norway and Switzerland.
For Austria, Germany, Portugal and Italy it is 14, and in France, the Czech Republic, Denmark and Greece it is 15. Spain did have one of the lowest ages of
consent on the continent at just 13, though recently agreed to raise this to 16.
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Another point that has acquired special importance is the current legislation making full-time education compulsory for those under de age of 16.
Those under 16 must remain in school on a full-time basis; and are thereby
prevented from gaining financial independence through full time employment.
The rules presently governing the extent to which school children under
the age can take part-time work are not only extremely confusing, but fail
to protect them adequately. The domestic regulations have introduced very
complicated laws limiting the part-time work of children under the age of
16. These now differ considerably; depending on a child’s precise age and the
type of work he or she is undertaking. The confusion nature of the provisions
restricting the hours and days of the week on which children below 16 may
work enables them to be widely flouted, not only by employers, but by local
authorities, who are responsible for their enforcement.
4.2. Over 16 and under 18
This age group is treated in a strangely ambivalent way in the main parts of
Europe. They face a number of formal legal barriers which, inter alia, exclude
them from voting, standing for Parliament, being a school governor, acquiring a legal state in land or making a donation. Furthermore, those contemplating leaving home will find that there are further several restrictions on
their financial independence. They can claim only very limited social security benefits, and with the exceptions of contracts for the supply of “necessaries” and beneficial contracts of service, they cannot enter into any legally
binding contract. Meanwhile, certain important freedoms become available,
to 16-years-olds. They may consent to surgical, medical or dental treatment,
marry with the consent of their parents, join the army and consent to sexual
intercourse as stated above.
No clear policy is discernible in the law presently governing those aged
between 16 and 18 who seek employment. Generally speaking, it treats them
like adults, requiring them to pay national insurance contributions and taxes.
Nevertheless, in the main part of Europe, for example, has been recognised the
vulnerability of this group of young employees by implementing the Council of Europe’s protective employment restrictions. But it was not until 2004,
following international criticism, that the statutory minimum wage scheme
was extended to 16–17-year-olds. The niggardly introductory rate was officially justified as a balance between stopping exploitation and avoiding young
people being enticed out of much-needed education or training by better employment rates. Despite continuing criticism that the present arrangements
are discriminatory and encourage the use of younger employees as a force of
216
cheap labour, there seems little official enthusiasm from bringing their statutory minimum wage into line with that for 18–21-years-olds.
4.3. Liberalising the law for 16–18-years-olds?
Activities not specifically covered by legislation are governed by the House
of Lords’ decision in Gillick (1986). Their Lordships rejected the proposition
that fixed age limits could ever be a satisfactory method of determining a
child’s legal competence. Providing every child with legal capacity to make if
own decisions, “when he reaches a sufficient understanding and intelligence
to be capable of making up his own mind on the matter requiring decision”, is
a refreshingly liberal approach. Nevertheless, it creates a layer of uncertainty
superimposed on an ill-assorted list of inflexible age limits, below which there
is not capacity and above which there is total freedom to perform the activity
in question.
5. Children’s active role
In the present section we would like to develop, as an example, an imaginary
situation in which children ask for their rights to be taken into account. You
can use this case as the basis for further discussion about the current role
played by children in our actual society. At this point it is crucial to emphasize
that there is a distinction between being a citizen and acting as a citizen: to be
a citizen, in the legal sense, means to enjoy the rights of citizenship necessary
for agency and social and political participation. To act as a citizen involves
fulfilling the full potential of the status. Nowadays law, as much international
as domestic level, only focus its attention to children as rights holders but
does not take a step forward and create the suitable conditions to encourage
children to act as a veritable citizens. In that way children are clearly excluded
of all decision-making processes that affect their lives.
The plot is set in a fictional town called Rainbow, an adult-centric small
city where mature people are thinking to set up a children’s playground in the
old quarry located on the outskirts of the town. To find out what happens next
you should read the following pages. Afterwards, you can use the key questions placed at the end the present document to lead a discussion about the
vision and treatment offered to children by Law.
217
6. Conclusion
By contrasting everyday practices of children and their families with legal instruments the great distance between the way children’s capacities are defined
and tackled becomes apparent. It is easy to conclude that no legal instrument
can be technically deemed to be fundamentally good for promoting children’s
rights and citizenship. To give children and young people a stronger and more
services, the “rethinking” by law would need to be substantial.
Adult models of childhood, institutional structures and adult practices
towards children-in other words, how children are conceptualized, viewed
and treated – are key to understanding the extent to which the law encourages adults to consult adolescents and older children over decisions regarding
their present and future and the scope they are given to reach legally binding
decisions of their own.
References
Alderson, P. (1993) Children’s consent to surgery, Oxford University Press.
Fortin, J. (2009) Children’s rights and the developing law. Cambridge, 2009, Third Edition, Ed. Cambridge University Press.
Lindley, R. (1989) Teenagers and other children, in Scarre, G. (Ed.) Children, parents and
politics, Cambridge University Press.
Case study for reflection
Word of the plan to create a playground area spread round the local children like wildfire,
and on the following Saturday afternoon a crowd of them gathered at the quarry.
‘We have to have a proper meeting,’ July Mackenzie said when she and Ella arrived.
‘We need a spokesman. I’ll do it’.
Everyone within earshot nodded enthusiastically; July, who had inherit her mother’s
ability to organise as well as her looks, was well known to them as a leader rather than a
follower.
Now she scrambled on to a large rock near the workmen’s hut. ‘Over hear, everyone,’
she shouted. ‘Okay, you all know why we’re here. The adults have decided to organise a
committee to discuss the most accurate way to give as a proper playground, right here’.
‘We don’t want a playground,’ someone shouted, while another voice chimed in with,
‘We like the way it is!’. A roar of agreement followed the second remark, and July gave it
time to grow before holding up a hand to calm it.
‘Right – hands up those who want the playground to go ahead. And hands up those
who don’t want it,’ she went on when all hands remained by their owners’ sides. This time
a forest of arms waved frantically in the air.
‘It looks as though we want this place to stay the way it is.’
‘But who’s going to listen to us?’ someone yelled.
‘They have a committee, so we’ll have a committee. We’ll demand a meeting and we’ll
tell them what we want’.
218
‘They won’t listen!’ the same voice insisted, and heads nodded all over the quarry.
Malcolm, who had a very secret crush on July, had been drinking in the sight of her
standing above everyone else. She was so convincing; then, realising he should be taking
part in the discussion rather than leaving it all to her, he suggested, ‘We could compromise. That means we could come to an arrangement – meet them halfway. We could tell
them that we’ll agree to a play ground, but it needs to have what we want in it, not what
they want’.
‘Good for you!’, July smiled down at him and his heart sang. ‘Malcolm’s right – we
could tell them that we’ll agree to their idea as long as we get to choose what should go in
the playground. That way they’re more likely to listen to us, and we’d at least get things the
way we want them. What do you think?’
There was a moment’s silence, and then as the children clustered round the rock realised than the compromise could bring them benefits, suggestions began to come from
all over the place. ‘A climbing frame – a see-saw – stuff to play Tarzan on – a trampoline –
tyre swings – rope climbing!’.
Again, July had to hold her hand up for silence. ‘Right, we’ve got started. The next
thing we have to do is to form our own committee, and then go home and think about
what you would like to see in our playground. Write it down, and we’ll have another
meeting here a in a week’s time. The committee will make a list of your demands and pass
them to the adults’ committee. Okay?’. Then, when heads nodded vigorously. ‘Now we
have to nominate our committee’.
‘July as the leader,’ Malcolm shouted, and the others cheered.
‘Ella, write that down,’ ordered July, who had equipped her younger sister with a notebook and a pencil before they left the hose.
‘Me as the chairperson, and then we need a secretary and some committee members – three should do it. Anyone good at writing and willing to be our secretary?’.
‘Please!’ Ella added.
John MacDonald put up his hand. A few seconds later, July voted Gregor in as a committee member since he had been the one to alert the others to the plan to turn their
beloved quarry into an official playground. Malcolm volunteered and was voted in, and
Peter Hoffman became the third committee member.
‘So over the next week you have to write down the things you want to see in our new
playground, and pass it on to one of the committee members,’ July instructed. ‘We’ll get
together on Friday afternoon to have a look at your lists, and on Saturday we’ll have another meeting here before we talk to the adults. We’ll have to be quick and we’ll have to be
firm. You know what adults are like; if they discover we’re fighting back they’ll probably
fill the place with baby swings and a tiny see-saw before we can stop them!’.
‘Are you sure about this?. My kids haven’t said a thing about setting up a committee!’
‘I only know about it because July was working on her dad’s computer last night,
going to the Internet to find out all about playground equipment. Why shouldn’t the children have a committee, Helen?. You and the others did it’
‘But they’re children!’
‘Never demean children. My July is a very intelligent girl. She has organised the others
into writing down their ideas of what they want in this playground’, Ingrid said proudly.
‘So you ought to warn the adult committee chairman and the others that the kids will
soon be looking for a meeting with them. Personally, I think it’s a good idea. Why should
our children settled for a playground designed by adults?. Far better to give them what
they want as long as it will be reasonable, then everyone will be happy’.
219
Finally, Helen landed with the task of telling Glen Smith, the adult committee chairman, about the children’s playground committee.
That evening Helen met Glen. She told him about the children’s playground idea and
that they had decided they wanted to be involved in planning it.
Glen’s eyebrows shot up. ‘The kids want to sit in on the committee?’.
‘No, they’ve formed their own committee and now they are putting together ideas on
the sort of playground they would like’.
‘You’re kidding me!’
‘I’m not, Glen. The kids are taking it very seriously. They want a meeting with your
committee before anything’s decided’
‘Now just a minute. The kids will be looking for all sorts of fancy things like water
slides and so on. We’ve got to work on a sensible layout first, and then start costing it –
and we have to apply for planning permission. Tell them they can come in on the discussion then when all that’s done – perhaps.’
‘I think we need to hear their views earlier than that, Glen. They say if we go ahead
without talking to them, they will have nothing to do with the new playground’.
‘Who are these kids anyway?’
‘Most of the children in the village between the ages of five and fifteen,’ Helen said.
‘They don’t all want to meet with you, of course, just the committee.’
‘Who else is on this so-called committee?’
‘July Mackenzie, young Malcolm, Gregor and one of the McDonald children’ Helen
replied.
‘Okay, tell them that we will have a meeting next Friday. I reckon I don’t have any
other chance,’ Glen muttered.
The day arrived. July had her committee members well briefed. They filed in, all of
them smartly dressed and with hair well brushed, and solemnly shook hands with the
adults. July and John, the secretary, both carried borrowed briefcases, which they opened
as soon as they were settled round the table in the City council’s meeting room.
July spread the papers she had brought with her over the table. They were all pictures
of playground equipment printed from the Internet, each one priced in a neat, clear hand.
‘May I start?’ she asked, and when Glen nodded, went on briskly, ‘We’ve collected
ideas from all the village children who are interested in this play area, and we’ve also had
a meeting with them to find out what they want us to tell you tonight. Now on the whole
we like the quarry as it is. We like the old hut and we use it as our headquarters. So it could
be nice if it could be patched up a bit’
‘That’s sounds sensible, and it shouldn’t cost much,’ Helen agreed.
‘That’s what we thought. As I said, we like the area the way it is, so we’ve decided,
since you are willing to raise the money for some playground equipment, it should all be
wooden, not coloured plastic. That way, it will blend in’.
‘You do need to think of the little brothers and sisters,’ Naomi suggested.
‘We realise that, so we thought we could have, say, four swings for them, and perhaps
a little see-saw, and a fenced-off area where they can play safely. We’ve priced them and
they won’t cost as much as some of the other things on the Internet.
220
•
•
•
•
•
Are children and young people’s representatives (eg. from networks of child groups
and/or children’s advisory groups) meaningfully involved in the design of new programmes (plans, budgets, indicators) and legal bodies on issues affecting them in
your country?
Is the legal system prepared to give up some power from adults to children?
Are complaint mechanisms and other accountability mechanisms accessible to children and young people? or on the contrary, are they excluded?
Limitations on children’s rights to be heard, not only as a collective, but also as an
individual: is it a form of discrimination?
What mechanism would you construct to address the ability of children to be heard
in your society?
Further readings
Archard, D. (1993). Children Rights and childhood. London, Ed. Routledge.
Bonfils, P. & Gouttenoire, A. (2008). Paris, Ed. Dalloz.
Commaille, J. (2004) “L’enfant euroéen” in Gadbin, D. (dir.): Le statut juridique de l’enfant
dans l’espace européen. Brussels, Ed. Bruyland.
Mnookin, R. (1985). In the interest of children: advocacy, law reform and public policy.
New York, Ed. Freeman.
CHAPTER 10: Cyberbullying – threat to children’s rights and well-being 221
CHAPTER 10:
CYBERBULLYING –
THREAT TO CHILDREN’S RIGHTS AND
WELL-BEING
Kairi Talves, Rita Nunes
Kairi Talves, MA, is Researcher at the Institute of Social
Studies, University of Tartu. Her research focuses on parental behaviour and children’s well-being in online and
offline environments.
[email protected]
Rita Nunes, MA, is Researcher at the Intercultural Education Institute and at the Constitutional and Administrative Law department at Freie Universität Berlin. Her research focuses on children’s rights and European Law.
[email protected]
1. Introduction
The development of new technologies and the growing presence of technologies in people’s everyday lives have initiated a debate about the risks of modern
communication practices. Considerable attention has been turned to young
people, the pioneers of the new digital age, who have access to all types of new
technologies and grow up using the Internet, which makes them natural users of the new media (Selwin, 2003). At the same time, they are also seen as
particularly vulnerable to several risks that may appear on the Internet (Livingstone et al, 2014). One of these new risks is cyberbullying, which will be
the focus of this paper. More precisely, the present paper will give an insight
into the concept and prevalence of cyberbullying by describing the impact
222
of the phenomenon on different aspects of children’s well-being and its connectedness with children’s rights to non-discrimination. Preventive measures
that may diminish cyberbullying and its harmful consequences are presented
in the conclusion of the paper.
When contemplating the link between new media use and children’s rights,
it is important to mention that nowadays Internet, mobile phones and other
digital media provide children with many positive outcomes including educational and social benefits such as access to knowledge, information, recreation, socialization and inclusion with peers. All these are largely meeting the
goal of children’s participation in the social world and their development as
required by article 13 (children’s right to participation, the freedom of expression) and 17 (right of access to information and mass media) of the United
Nations Convention on the Rights of the Child (herein UN CRC). Despite
these undeniable benefits, there is a drawback to the youth’s presence online
when the Internet becomes a discriminatory environment. Cyberbullying can
include the discrimination of children who are perceived as “different“such as
ethnic minority groups, LGBT people, overweight children or children with
disabilities. According to UNICEF Innocenti Research Centre (IRC) report
cyberbullying is one of the most serious violations of children’s rights taking
place in online environments. Such violations include violence and violation
of privacy and can have significant impact on children because of its anonymity, and its capacity to intrude at any time of day and night into homes and
other secure places where children stay (UNICEF IRC, 2011).
Nonetheless, free access to the Internet and its positive potentials, as well
as promoting digital citizenship and responsibility are remarkably important drivers to diminish exclusion and discrimination in today’s world where
technology plays such a significant role. The internet not only can but must
be the place where online discrimination and cyberbullying is reduced, circumvented and minimized, protecting children and youngstersfrom harm in
conformity with the UN CRC articles 2, 16 and 19.
2. Children and Media
Media has an important impact on the behaviour of children in our societies.
Young people are active consumers of several types of media (Cooke, 2002;
Heim et al, 2007). Studies reveal that in the USA a “typical child spends more
than 38 hours a week (nearly 5.5 hours per day) consuming media outside of
the school environment” (Cooke, 2002). In Europe, there is also a tendency to
ever-increasing media consumption. According to Eurostat9, Internet usage
9
Seybert, H. & Reinicke, P. in: Statistics in focus 29/2013, Catalogue number:KS-SF-13029-EN-N.
CHAPTER 10: Cyberbullying – threat to children’s rights and well-being
223
among adolescents has grown extensively in recent years: in 2007, 48% of
16–24 year olds were using the Internet every day; in 2013, the number has
reached 94% (Eurostat, 2013). The majority of children in Europe access the
Internet at home or in school, a study demonstrates that 87% of the children
use the Internet at home and 63 % in school (Livingstone et al, 2011)
With new media, children have new ways of communicating, of building friendships and playing (Bennet, 2008). The growing worldwide trend of
accessing the Internet via portable devices like smartphones and tablets increases the activities performed online as well as the children’s virtual social
interactions with their peers (McKenna & Bargh, 2004).
Children and young people use the Internet to pursue a wide range of
activities (gaming, blogging, audio and video streaming, social networking
amongst others) and to construct Internet communities (Buckingham, 2006)
through email, online chat, and social networks such as Facebook, Ask.fm,
Twitter and Myspace.
Nowadays children and young people use mainly social media networks as
a tool to cyberbully. Surveys in the UK demonstrated that Myspace is the preferred used tool for cyberbullying. This is followed by Facebook and Twitter.
Nonetheless tools such as Ask.fm, Tumblr and Bebo are also stage for cyberbullying. In Malta for example Snapchat is one of the most used tools amongst
children frequenting school. Snapchat and Ask.fm provide the option of anonymity. However, they involve many risks as questions and photos shared in
these tools can be deleted after a small period of time. For example Snapchat
is a photo messaging application that users can use to send photos, videos,
text and drawings to a controlled list of recipients which these can view for a
period of only 1 to 10 seconds, afterwards, the message and its content is deleted. These services provide a new dimension to bullying effect as evidence is
deleted and the effects are even impossible to account and measure.
Children experience many positive aspects in their online communication
practices like finding new friends, creating good relationships, and gaining
new knowledge since the Internet is a highly prolific arena for all this. At the
same time, communication may end with negative outcomes like discrimination, bullying or other kind of harmful behaviour from peers and strangers.
3. Definition of cyberbullying and the differences from traditional
bullying
In order to understand the concept of cyberbullying we need to understand
the etymology of the word. The word derives from the concept of bullying.
224
Dan Olweus described bullying10 as a specific kind of behaviour typical for
adolescence and occurring within school contexts. The concept contains
three main criteria: intentionality, repetition, and imbalance of power. There
was an intention of harming others through an abuse of power between the
more powerful perpetrator and his either physically or socially weaker victim.
This abuse may be repetitive and demonstrate and confirm the perpetrator’s
higher position of power (Kalmus et al, 2014).
Cyberbullying is a new kind of bullying with some different characteristics from traditional bullying (Smith et al, 2008). Definitions of cyberbullying
portray similar characteristics with the addition of technological modalities.
Therefore, the following characteristics endure from the traditional bullying: power imbalance, intention, and repetition. Menesini et al (2012) tested
how adolescents analysed and perceived the different criteria of bullying and
found that the repetition characteristic is left behind when adolescents evaluate a scenario as cyberbullying. However, three additional criteria are identified in the context of cyberbullying: anonymity, publicity, and rapidness. Both
the traditional characteristics of bullying as well as the extended list of criteria
for cyberbullying will be described below.
The first traditional characteristic of bullying that also applies to cyberbullying is the imbalance of power. The imbalance of power is based on the
micro-processes of action and reaction. If the bully attacks and the victim is
upset and does not know how to defend him or herself, an imbalance of power – by definition a bullying attack – is created within the dyad. The second
dimension, the intentionality, demonstrates that the perpetrator must have
the intention to harm. There is an aggressive behaviour related to this characteristic. The third traditional characteristic of bullying, repetition, will not be
approached for cyberbullying as adolescents do not consider it as significant
in their analysis of cyberbullying.
The first additional characteristic of cyberbullying is anonymity. According to several authors (Kalmus et al, 2014; O’Brien & Moles, 2010) cyberbullying remains more anonymous than traditional bullying. Anonymity permits children and young people to engage online in behaviour with peers they
would not usually engage with offline. It permits the engagement of children
who would not practice bullying in school or elsewhere and online practice
it as they do not fear for reprisal. As cyberbullying is more secretive than traditional bullying, perpetrators are not always aware of the immediate affects
that their behaviour has on the victim. As a result, cyberbullies might experience less empathy and perceive their acts less harmful than those who bully
in the traditional sense.
10
The concept of bullying was developed in the 1980’s.
225
The second additional characteristic of cyberbullying is publicity. Publicity relates to the fact that the material used for bullying is easily accessible to
a potentially large audience (Menesini et al, 2012). Information flow is very
intense nowadays and comments and videos can be accessible worldwide in
very short time. Cyberbullying can literally spread through most of the applications children use and therefore potentially reaches a broad audience in
a short amount of time. Publicity typically involves primary communication
tools such as emails, chat rooms, instant messengers, social networking sites
and discussion forums; however, online games, blogs and video sharing websites are also frequently used.
This characteristic is very much related to rapidness. The fact that online
material has a rapid arrival into cyberspace means that an infinite number of
supporters can join in the bullying. Many of these supporters would normally
not engage in the face-to-face abuse and might not understand the impact
cyberbullying can have on the victim while the bullies hide behind their computer screens.
Even though cyberbullying is considered as a wide set of phenomena applying to different target groups, the majority of children who cyberbully are
known peers rather than strangers. In this article, cyberbullying is therefore
considered to take place mainly between children or young people who more
or less know each other. Methods of cyberbullying are developing fast together with the rapid development of the Internet and mobile devices. Kowalski
et al (2008) have designed the most frequent forms of cyberbullying as Flaming11; Harassment12; Stalking13; Denigration14; Impersonation15 and Exclusion
or ostracism16.
It is also noted that there are types of cyberbullying that are perceived by
young people being bullied as less harmful, such as insults and threats, while
other forms are considered more damaging, especially those where images or
videos are used and when there is a perception of high risk of personal injury,
11
Flaming is the vulgar and nasty verbal exchange progressing only in a short period of time
and between at least two communicants.
12
Harassment is similar to flaming but constitutes one-sided acts with a tendency of being
persistent over time or recurring.
13
Stalking is close to harassment with the main difference being its relatively longer time of
occurrence; here, a perpetrator is trying to evoke in his or her victim negative feelings of being
chased.
14
Denigration consists of spreading untrue information or posting altered pictures on the
Internet, often containing humiliating content. It also includes posting true, yet still humiliating information, pictures, or videos that its owners intended to keep secret and hidden.
15
Impersonation is stealing someone’s online identity. The hackers access the victim’s personal account in any application and use it for anti-social purposes, e.g. for sending untrue or
nasty messages to the victim’s friends.
16
Exclusion includes forbidding access to certain online groups.
226
e.g. in acts of blackmail. Perceptions can differ between countries indicating that the impact of cyberbullying may depend on the cultural importance
given to social relationships established in cyberspace.
4. Studies about prevalence of cyberbullying in Europe
4.a. Victims vs. Perpetrators
Studies of cyberbullying are mostly using victims as informants and self-reports as crucial resources in the data collection. The victims’ testimonials are
important to shed a light on the subjective experiences of cyberbullying. In
addition, to better understand the motives behind the perpetration of cyberbullying, the perceptions and actions of the perpetrators should also be taken
into account. Another reason why studies need to target children’s own perspectives is the nature of cyberbullying, its strong connectedness with technologies, and its rapid changes. To understand specific types of technologies
and online contexts, it is important to listen to children’s views about changing technology and the varying popularity of specific communication technologies as contexts of bullying incidents.
Despite the growing use of mobile phones and the Internet among the
young generation, the numbers of cyberbullied children are not particularly
high in Europe. According to survey data collected by EU Kids Online17, 6%
of 9–16 year olds, in 25 European countries, have been sent nasty or hurtful
messages online. The same data explains that only 3% have sent such messages to others. However, over half of those who received bullying messages
were fairly or very upset. Nevertheless, it seems that more bullying still occurs offline rather than online.18 Different forms of cyberbullying not only
tend to combine with each other but, most importantly, they tend to combine
with forms of traditional bullying. Half (56%) of the online bullies said they
had also bullied people face-to-face, and half (55%) of the online victims responded that they have also been bullied face-to-face. Bullying migrates from
online to offline and vice-versa, creating difficulties for the victims to escape
from bullying (Livingstone et al, 2011).
European countries differ largely in prevalence of cyberbullying as well as
offline bullying. High levels of online and offline bullying often occur simultaneously. This suggests that with higher Internet use the amount of bullying increases and perpetrators are able to reach their victims through diverse
means. Higher rates of cyberbullying appear in countries with more extensive
17
More about the EU Kids Online project can be found at www.eukidsonline.net
19% have been bullied either online or offline (compared with 6% online), and 12% bullied someone else online or offline (vs. 3% online)
18
227
Internet use.19 In the same countries, there are also higher rates of traditional
bullying.20 On the opposite side, countries with lower Internet use tend to
have lower rates of cyberbullying, too21 (Livingstone et al, 2011). One of the
explanations for these correlations is that the children in countries with higher rates of (cyber)bullying may be more aware of bullying and will thus be
more prone to recognise, interpret and name the acts as bullying. Depending
on the country, children assign different meanings as well as a different social
acceptability to hurtful acts they have experienced. The second explanation
that is suggested to justify this correlation is that there are differences, not
only in sensitivity to perceiving bullying but also in the nature of the bullying
itself. These could be related to the factors underlying relationships established in schools, specific educational initiatives or to the social context and
climate in each country (Ortega et al, 2012).
However, there exists also a third group of countries where Internet use
is quite high, but where the number of bullying cases is quite low, e.g. The
Netherlands, Denmark, and Slovenia (Livingstone et al, 2011), which confirms that high intensity of Internet use does not automatically correlate with
high bullying rates.
This proves that the correlation mentioned above may depend on other
aspects, namely the aspects of offline bullying. We would like to highlight here
that the analysis of cyberbullying should not only be centred on the victims.
Not all children and young people involved in bullying are victims, some are
bullies, some are active and involved bystanders and some are uninvolved. A
recent study developed in Finland (Lindfors et al, 2012) shows clear differences between being involved in cyberbullying and perceiving it as a serious
problem. According to this study, among 12–18 year old Finnish adolescents
the prevalence of cyberbullying victims is 11% and only 2% of them tend to
think about this as serious and highly disturbing problem. The study from
Lindfors et al also stresses the need to pay more attention to the bystanders of
cyberbullying.22 Lindfors et al (2012) reveal that witnessing cyberbullying is
the most prevalent dimension of cyberbullying and indicated that an adolescent may be exposed to cyberbullying in several ways23.
19
In Estonia, 14% of children between 9 and 16 reported to having been cyberbullied, in
Romania 13%, in Denmark 12% and in Sweden 11%.
20
The percentage of children who have been bullied either online or offline reaches in Estonia to 43%, in Romania 41%, in Denmark 25% and in Sweden 28%.
21
For example, 2% of the children in Italy report acts of cyberbullying. Compare figures
from other countries: Portugal 2%, Turkey 3%, Greece 4%, Spain 4%. In correlation, there are
also lower rates in traditional bullying: Italy 11%, Portugal 9%, Turkey 11%, Spain 16%.
22
According to the study 13% of the children explained that they had witnessed their friend
being cyberbullied.
23
Lindfors, Riittakerttu Kaltiala-Heino, and Arja H Rimpelä study refering to Cyberbullying
among Finnish Adolescents.
228
4.b. Online and traditional bullying
Generally, children who are bullied and/or bully others online “have similar demographic and psychological profiles to those who are bullied and/or
bully offline”24 except in that they make use of the possibilities of the Internet.
Online bullies are more likely to use the Internet, are more confident of their
online skills, engage in risky online activities and have an ‘online persona’25.
Ortega et al (2012) compared the victims of traditional bullying and cyberbullying and found that emotional responses to bullying are linked to the
type of bullying they had experienced. Across all types of bullying, the most
common reported emotional response is anger. Interestingly, the proportion
of victims that report negative emotions in cyberbullying was lower than in
traditional bullying. These differences could be related to the characteristics
of these two kinds of bullying. Some pupils seem to regard cyberbullying as
(mostly) not as serious as traditional bullying, because it is not “real” and can
be ignored in a way that face-to-face bullying cannot. There are also other possibilities, so the differences found could be related to the presence or absence
of face-to-face contact; with face-to-face contact victims have more emotional information about their aggressors, so it could be easier to read their intentions, which could affect the emotional response. The authors suggest that the
current categorization, traditional vs. cyberbullying, may be insufficient to
capture the complexity of these phenomena. Some specific types of cyberbullying maybe more similar to some specific types of traditional bullying.
In sum, these findings suggest that online bullies can be differentiated from
traditional bullies because of their behaviour and attitudes associated with the
Internet as well as their gender composition rather than based on their offline
behaviours. Online bullies and the victims of online bullying are mostly also
vulnerable offline. This supports previous findings that those children who
bully online and the victims of online bullying already face problems offline,
and are not only in need of support in their offline livesbut also in their online
lives. This includes children who are psychologically vulnerable, are socially
excluded, tend to engage in problematic sensation-seeking behaviours or are
in some way or other members of a vulnerable groups (Hasebrink et al, 2011).
6. Cyberbullying and its impact to children’s well-being and their
rights
Being bullied has a direct impact on children’s well-being, both in sense of
direct and immediate effect as well as long term influence that may not seem
24
25
EU Kids Online survey ISSN 2045-256X
In other words, to feel more comfortable online than offline.
229
so present at first glance. The UNICEF Index of Children’s Well-Being categorizes 40 indicators that are relevant to children’s lives and children’s rights under six headings or dimensions26 (UNICEF, 2007). In addition, to the multiple
dimensions of individual well-being the influence of the social environment
on the quality of life of a child needs to be taken into account. Conceptualized
as the ‘liveability of societies’ by Veenhoven (1996), this dimension can be
termed as measurement of well-being27. If one considers the context of child
well-being related to the Internet, the societal aspect can be understood in
terms of social resources and barriers, which enable and support, or inhibit
children in making use of the Internet to meet their needs and abilities (Kalmus et al, 2014: 3).
Based on the categorizations of individual well-being and influences of
social environment to describe the child well-being Kalmus et al (2014) have
combined these and relates them to the Internet. The authors distinguish between six main components that are relevant in research and policy addressing children’s use of the Internet: material, physical, psychological, social, developmental and societal well-being (Kalmus et al, 2014).
The impact on children’s well-being can influence all these clusters, being the psychological well-being and more specifically the emotional distress
of the victim one of the most severe problems. The emotional distress may
lead to more serious outcomes such as low self-esteem, depression and suicidal thoughts or attempts. Studies show that anxiety, depression and lower
self-esteem are both predictors and consequences of being systematically attacked28. Analyses with regard to the role of psychological characteristics
suggest that psychological difficulties are associated with both online bullying
and victimisation, sensation seeking and ostracism with victimisation. Those
involved in online bullying show overall a higher psychological vulnerability
than those not involved in this type of bullying.
Other clusters such as the social well-being may also be influenced by cyberbullying, when children and youngsters encounter social harm (loss of
friends, social exclusion, loneliness etc.).29
Cyberbullying is especially affecting children who belong to a vulnerable
group, as explained above. The right to non-discrimination affecting cyber26
These are: material well-being; health and safety; education; peer and family relationships;
behaviours and risks; and young people’s subjective sense of well-being
27
Where an assessment is made of the opportunities provided by a society for leading a
high-quality life.
28
According to the 2013 annual Cyberbullying survey conducted in the United Kingdom 7
in 10 young people are victims of cyberbullying which has a negative effect on the self-esteem
and social lives of young people.
29
Harm associated with negative experiences online differs by severity and longevity – from
immediate or short-term consequences to longer or even lifelong effects (Livingstone 2013).
230
bullied children is prominent also online. Reporting from children with disabilities victims of cyberbullying show that this has become a problematic
source of violation of children’s rights30. Other children have become targets
of bullying due to their skin colour, religion, race31, sexual orientation32, and
physical capabilities, amongst others. Discrimination of children in vulnerable situations is not only occurring offline as cyberbullying is also having a
negative effect on the well-being of children.
7. Measures to reduce cyberbullying – helping children to gain
resilience
The transactional theory of stress and coping (Lazarus and Folkman, 1984)
proposes that the way in which people cope with a stressful situation, such
as bullying, does not depend exclusively on the event itself but also on how
the individual appraises it. The same event could lead to different reactions
by different people (Ortega et al, 2012). Personal variables are important to
understand why different victims show different emotional impact and which
are the coping strategies used. Studies have found that that cyber victimization has negative outcomes: on academic performance (Katzer et al, 2009);
psychosocial problems such as depression, social anxiety, hopelessness and
low levels of self-esteem (Raskauskas and Stolz, 2007).
In order to cope with cyberbullying children have different strategies:
‘Fatalistic’ or ‘Passive’: children cope with cyberbullying using indifference, they may believe that being bothered or harmed is only temporary and will not cause substantial or long-term harm. Children accept
that sometimes they encounter something unpleasant but this is just
temporary.
‘Communicative’: Children decide to stopusing the Internet for a period
of time. This can be interpreted as just avoiding the problem without
eliminating the actual cause.
‘Proactive one’: Children try to fix the problem by deleting unpleasant
messages or blocking senders/ the perpetrators.
30
The Annual Cyberbullying Survey 2013 in the UK had the contribution of a female who
reported: “she got tripped from her wheelchair and they were laughing and taking pictures of
her”.
31
http://www.publico.es/actualidad/531035/agresion-racista-en-el-metro-de-barcelona
32
http://www.telegraph.co.uk/news/uknews/1575145/Bullies-blamed-for-death-of-secondpupil-at-school.html
231
The last coping strategy (according to resilience literature) is considered to be
the better adaptation to adversity, because it aims to reduce or eliminate further harm in the future. Most children use communicative strategies if they
have been bullied online33. Generally, children’s tendency to proactively try
to fix the problem increases when they feel upset with more insensitivity. A
study conducted by Hasebrink et al (2011) demonstrated that many of the
bullied children become the bullies as a revenge factor. 32% of children and
youngsters become bullies once they have been bullied.
As a result of the fast-growing interaction among and with children – using the new and fast-changing technology, mixed with the lack of awareness
and understanding of the internet on behalf of adults’ the societal anxiety is
rising − as well as sensationalism, myth-making and potentially inappropriate
policy responses. To avoid such problems, the wider assessment of the risk in
childhood is needed as well as the analysis of the contingencies that mediate
the relation between risk and harm in accounting for whether, when and why
some children are vulnerable to online risks and what can be done to minimize the risks and also harm they may encounter online.
To minimize the risks children’s opinions (art. 12 UN CRC) and their experiences must be heard and acknowledged. Public policy debates regarding children’s well-being, their best interest shall be promoted, and children’s
rights shall be considered taking into account the children’s own opinions.
Children and young people are often the best experts in relation to their own
media and technology usage (UNICEF ICR, 2011). Considering bullying and
its relatedness both to online and offline social worlds, it should be made
explicit that the risk can occur in both. While the Internet has added new
sources of risk, the history of harm is as old as childhood itself. As online and
offline are tightly connected this also influence mutual and intersecting connections between risk and harm (Livingstone, 2013).
The protection of children from online offenses is a not a straightforward
as one thinks as one needs to find the balance between the right to protection
from all forms of violence and the right to information, freedom of expression and association, privacy and non-discrimination34. That balance must be
anchored in the best interests of children as a primary consideration, the right
to be heard and taken seriously, and recognition of the evolving capacities of
children and young people. It is unlikely ever to be possible to remove all the
risks to children and young people that exist in the online environment35.
33
Studies show that 77% of children try to talk to somebody about being bullied and that
36% of them tried to fix the problem.
34
UNICEF Innocenti Research Centre (IRC) report about children online safety
35
Moreover, beyond a certain point, attempting to do so could threaten the very essence
of the Internet and its multiple benefits, including the empowerment and participation that
Internet has to offer (UNICEF IRC 2011).
232
The measures to fight cyberbullying include measures to avoid bullying
behaviour and measures to empower children by teaching them resilience
techniques36. Cyberbullying includes the elements of traditional face-to-face
bullying, which means that children need general knowledge about anti-bullying behaviour37.
According to art. 2 UN CRC children’s rights to non-discrimination is a
core principle, which protects children regardless of their race, colour, sex,
language, religion, political or other opinion, national, ethnic or social origin,
property, disability, birth or other status. As we have reported above, much
of the bullying is concentrated on violation of these rights and formed on the
basis of discrimination.
Parents and other adults, but also researchers who are dealing with the
topic should keep in mind that children experience cyberbullying very differently. Though many young people think that cyberbullying is harmful and
possibly even more harmful than traditional face-to-face bullying, a substantial number think it is less harmful. Not all children and young people worry
about cyberbullying, even if they had been bullied, and quite many of them
refer to resilience and a range of coping strategies (O’Brien & Moles, 2010).
Finally, more research is needed to understand what makes some young
people more resilient than others and what specific characteristics make some
children more emotionally affected than others. It is important and crucial to
hear children’s opinion about cyberbullying and to empower them with coping strategies to surpass discrimination online. This discussion is a part of a
wider shift from technologically determinist discourses (of what the Internet
“does” to children) in favour of also recognizing children’s agency (Livingstone et al, 2014).
References
Bargh, J.A. & McKenna, K.Y.A. (2004). The Internet and Social Life. Annual Review Psychology, 55, 573–590.
Bennett, W.L. (2008). Changing citizenship in the digital age. In W.L. Bennett (Ed.), Civic
Life Online: Learning How Digital Media Can Engage Youth (pp. 1–24). Cambridge,
MA: M.I.T. Press.
36
For example, what kind of measures shall be taken to stop the perpetrator, how to support children if something bothers them on the Internet, how to prevent bullying etc. It is also
important if we keep in mind the bystanders, to be informed about the discrimination and
bullying and to stay against such kind of perpetual activities.
37
e.g. acknowledging everybody’s right to be treated with respect and feel safe in school and
community, not going along with bullying or harassment, reporting if having been the witness
of bullying
233
Buckingham, D. (2006). Digital generations: children, young people, and new media. Mahwah N.J.: Lawrence Erlbaum Associates Publishers.
Cooke, R. (2002). Kids and media. Young Consumers: Insight and Ideas for Responsible
Marketers, 3(4), 29–36.
Individuals frequency of internet use database (2013). Eurostat, http://epp.eurostat.
ec.europa.eu/portal/page/portal/product_details/dataset?p_product_code=ISOC_
CI_IFP_FU. Accessed 22 May 2014.
Hasebrink, U., Görzig, A., Haddon, L., Kalmus, V., Livingstone, S. (2011). Patterns of risk
and safety online. In-depth analyses from the EU Kids Online survey of 9–16 year olds
and their parents in 25 countries. LSE, London: EU Kids Online.
Heim, J., Brandtzeg, P.B., Kaare, B.H., Endestad, T., Torgersen, L. (2007). Children’s usage
of media technologies and psychosocial factors. New Media & Society, 9(3), 425–454.
Helsper, E.J., Kalmus, V., Hasebrink, U., Sagvari, B., De Haan, J. (2013). Country Classification: Opportunities, Risks, Harm and Parental Mediation. LSE London: EU Kids
Online.
Kalmus, V., Siibak, A., Blinka, L. (2014). Internet and child well-being. In A. Ben-Arieh, I.
Frones, F. Casas, J.E. Korbin (Eds.). Handbook of Child Well-Being. Theories, Methods
and Policies in Global Perspective (pp. 2093–2133). Dordrecht: Springer.
Katzer, C., Fetchenhauer, D., Belschack, F. (2009). Cyberbullying: who are the victims?
A comparison of victimization in Internet chatrooms and victimization in school.
Journal of Media Psychology, 21, 25–36.
Kowalski, R.M., Limber, S.P., Agatston, P.W. (2008). Cyber Bullying. Hoboken: Wiley.
Lazarus, R.S., Folkman, S. (1984). Stress, appraisal, and coping. New York: Springer.
Lindfors, P.L., Kaltiala-Heino, R., Rimpelä, A.H. (2012). Cyberbullying among Finnish
adolescents – a population-based study. BMC Public Health, 12, 1027.
Livingstone, S., Haddon, L., Görzig, A., Ỏlafsson, K. (2011). Risks and safety on the Internet: the perspective of European children. Full findings. LSE London: EU Kids Online.
http://www.lse.ac.uk/media@lse/research/EUKidsOnline/EU%20Kids%20II%20
(2009–11)/EUKidsOnlineIIReports/D4FullFindings.pdf. Accessed 15 March 2014
Livingstone, S. (2013). Online risks, harm and vulnerability: Reflections on the evidence
base for child Internet safety policy. Zer, 18(35), 13–28.
Livingstone, S., Haddon, L., Görzig, A., and Ólafsson, K. (2011). Risks and safety on the
internet: The perspective of European children. Full Findings. LSE, London: EU Kids
Online.
Livingstone, S., Kalmus, V., Talves, K. (2014). Girls’ and boys’ experiences of online risks
and safety. In C. Carter, L. Steiner, L. McLaughlin (Eds.) The Routledge Companion to
Media and Gender (pp. 190–201). Taylor and Francis: New York.
Menesini, E., Nocentini, A., Palladino, B.E., Frisen, A., Berne, S., Ortega-Ruiz, R., Calmaestra, J., Sheithauer, H., Schultze-Krumbholz, A., Luik, P., Naruskov, K., Blava, C.,
Bertahud, J., Smith, P.K. (2012). Cyberbullying Definition Among Adolescents: A
Comparison Across Six European Countries. Cyberpsychology, Behaviour and Social
Networking, 15(9), 455–463.
O’Brien, N. & Moules, T. (2010). The impact of cyber-bullying on young people’s mental
health: Final report. Anglia Ruskin University.
Ortega, R., Elipe, P., Mora-Mercha’n, J.A., Genta L.M., Brighi, A., Guarini, A., Smith, P.K.,
Thompson, F., Tippett, N. (2012). The Emotional Impact of Bullying and Cyberbullying on Victims: A European Cross-National Study. Aggressive Behaviour, 38, 342–356.
234
Raskauskas, J. & Stoltz, A.D. (2007). Involvement in traditional and electronic bullying
among adolescents. Deviation Psychology 43, 564–575.
Selwyn, N. (2003). “Doing IT for the Kids”: Re-Examining Children, Computers and the
“Information Society”. Media, Culture & Society, 25(3), 351–378.
UNICEF (1990). Convention on the Rights of the Child. Full text. Entered into force 2 September 1990, http://www.unicef.org/crc/index_30177.html. Accessed 15 March 2014.
UNICEF (2007). An overview of child well-being in rich countries: A comprehensive assessment of the lives and well-being of children and adolescents in the economically advanced nations, The Innocenti Research Centre, UNICEF.
UNICEF IRC (2011). Child Safety Online: Global Challenges and Strategies. The Innocenti
Research Centre, UNICEF, http://www.unicef-irc.org/publications/pdf/ict_eng.pdf.
Accessed 5 May 2014.
•
•
•
•
•
Why are Internet risks including cyberbullying treated as violation of children’s right
to protection?
How does cyberbullying differ from traditional (offline) bullying? In what aspect
these are different or similar? Discuss these aspects from the perspective of the children’s right to non-discrimination.
What are the main consequences of cyberbullying to children’s well-being? Describe
how cyberbullying affects children’s psychological, social and emotional well-being?
What is the difference between risks and harm which children may encounter online? How is difference between risks and harm connected with children’s rights and
agency? Why evidence based policy making should consider the children’s voice?
What can parents, teachers, politicians, etc. do to reduce the risks and harm induced
from cyberbullying?
Further readings
Kalmus, V., Siibak, A., Blinka, L. (2014). Internet and child well-being. In A. Ben-Arieh, I.
Frones, F. Casas, J.E. Korbin (Eds.). Handbook of Child Well-Being. Theories, Methods
and Policies in Global Perspective (pp. 2093–2133). Dordrecht: Springer.
Livingstone, S. (2013). Online risks, harm and vulnerability: Reflections on the evidence
base for child Internet safety policy. Zer, 18(35), 13–28.
UNICEF IRC (2011). Child Safety Online: Global Challenges and Strategies. The Innocenti
Research Centre, UNICEF, http://www.unicef-irc.org/publications/pdf/ict_eng.pdf.
Görzig, A. (2011). Who bullies and who is bullied online?: a study of 9–16 year old internet users in 25 European countries. EU Kids Online, London, UK, http://eprints.lse.
ac.uk/39601/.
CHAPTER 11: Monitoring non-discrimination in education 235
CHAPTER 11:
MONITORING NON-DISCRIMINATION
IN EDUCATION
Nevena Vučković Šahović, PhD is a Professor at the Faculty
of Law, UNION University in Belgrade, Serbia; she teaches
International Public Law with International Organizations
and Family Law with Rights of the Child; Coordinator of the
Master on the Rights of the Child.
[email protected]
1. Introduction
The right to education is precondition for the development of an individual
as well as of society. The Convention on the Rights of the Child (hereinafter
referred to as: CRC or the Convention), in Article 28, para. 1 declares that the
right of the child to education is based on «equal opportunity» and that the
States parties to the CRC (hereinafter referred to as: the States or Parties) are
obliged to «make primary education compulsory and free to all». Such formulation stresses basic value of article 2 of the CRC on non-discrimination. Girls,
refugee children, poor children, indigenous, ethnic minority children, children with disabilities, children affected by armed conflicts and natural disaster,
children in conflict with the law are all at risk of having limited or no access
to education, as well as not having equal opportunities for quality education.
The major question is how do we know whether rights of the child are
respected and enjoyed in a particular country or setting. Therefore, this
chapter offers information, exercise and examples for students1, so that
they can practice and get basic skills to monitor and measure rights of the
child, in this case non-discrimination in education, and subsequently apply the method to monitor any other right.2
1
Higher and high education students are the target group in this Chapter. The use of the
word “students” in the exercise part of this Chapter refers to children in elementary and secondary education.
2
The model offered in this chapter is just an example. It is based on one of the clusters of
the 2013 project “Index of the Rights of the Child in Education”, developed in Serbia by Uzice
236
This Chapter offers a very simple and basic guidance, with a two-fold outcome: through development of monitoring tools, students get closely acquainted with international and national rights of the child, focusing on a
specific area, and they also get skills to measure the exercise of rights.
This chapter is also intended for human rights/rights of the child teachers
who would like to introduce this kind of exercise to their students. Furthermore, it is an instrument for child rights practitioners who might find it useful
to try and develop simple tools to enable them to monitor rights of the child.
Any attempt to develop monitoring tools in the specific area of the rights
of the child requires: knowledge on the topic, including knowledge on the
legal standards, as well as some basic capacity to use research methods and
tools. Before embarking on indicator-development, students and researchers
should identify an area of the rights of the child they want to monitor and get
acquainted with, and identify relevant legal standards, after which they should
proceed to develop a possible list of indicators that will help them analyse actual exercise of rights.
The choice of topic for this chapter requires an insight into the right of the
child to non-discrimination, as well as into rights of the child in the education system, and the analysis of the interrelatedness of the two. Moreover,
it requires general knowledge of the rights of the child, in particular the
CRC, as well as of the documents adopted by the monitoring body of the
CRC – the Committee on the Rights of the Child (the CRC Committee).
Such documents adopted by the CRC Committee are General Comments,
Concluding Observations or Recommendations. All these are core documents that students and researchers should use to set standards and develop
indicators.
Besides knowledge of legal documents, students should get acquainted
with basic monitoring tools. Therefore, this chapter also explains what child
rights monitoring is, why is it necessary and how can it be pursued, e.g. by
identifying standards and developing respective specific indicators.
Non-discrimination in education indicators aim at checking on how each
child enjoys right to protection from discrimination in a particular setting,
such as in schools. Therefore, indicators should be developed on the basis of
international legal standards, assessing national law and data. No “international” set of indicators fits all situations so they should also be country-speChild Rights Centre and Pestalozzi Children’s Foundation (Serbia program). The model will
be tested in schools but also as basis for development of indicators in other areas of the rights
of the child within Master on the Rights of the Child at the UNION University Faculty of Law,
in the 2014 Spring Module: Methods and techniques of Childhood and Child Rights Studies.
CHAPTER 11: Monitoring non-discrimination in education
237
cific and even setting specific. In most of the States there is a lack of regularly
collected and analysed data on the numbers or circumstances of children not
enjoying right to education which makes it difficult for governments and other stakeholders to monitor progress in preventing discrimination, promoting
equal access to education and ensuring the provision of appropriate education for all children. The lack of such data also makes it difficult or even impossible to compare the situation of children’s right to education across countries and regions. Still, it is possible to develop a simple list of indicators on
non-discrimination in education, and with or without Government-collected
data is a useful tool. The list proposed in this chapter is aimed at schools: it can
easily be tested in any school: students are advised to try and establish contact
with a school in order to assess usefulness of this or any other list of indicators
they develop on non-discrimination in education.
2. Right to non-discrimination (CRC, Article 2)
The issue of non-discrimination of the child and childhood itself is to some
extent tackled in the preamble to the Convention. In the first preamble paragraph, the Parties note that “... recognition of the inherent dignity and of the
equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” The third preambular paragraph reaffirms the non-discrimination principles recognized in the United
Nations’ Universal Declaration of Human Rights and in the International
Covenants on Human Rights, which proclaimed and agreed that everyone is
entitled to all the rights and freedoms set forth therein, without distinction of
any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The essence of this right is that all CRC rights apply to every child without exception and that the States’ obligations are to provide protection from
any form of discrimination. Article 2 of CRC prohibits discrimination “irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex,
language, religion, political or other opinion, national, ethnic or social origin,
property, disability, birth or other status.” The adoption of the Convention is in
some ways a response to demands for protection of children, as well as special groups, from discrimination. Discrimination of children and childhood
is widespread in spite of over twenty years of implementation of the CRC.
238
3. Rights related to education (CRC, Articles 28 and 29) and how they
relate to non-discrimination
Education is the means and precondition for enjoyment of all human rights.
Education affects quality of life and enables improvement of life. Even though
education is basically accepted as a cultural right, it has elements of economic,
social, civil and political rights. The International Covenant on Economic Social and Cultural Rights’ (ICESCR) Committee in its General comment No.
13 labels education as an empowerment right, serving as the primary vehicle
by which economically and socially marginalized adults and children can lift
themselves out of poverty and obtain the means to participate fully in their
communities.3
The right to education belongs to all human beings, although most beneficiaries are children. The right to education is first and foremost a right to
acquire education. However, quality of education and aims of education provide a cultural, philosophical, psychological and democratic dimension to
this right.
The child’s right to education is in the focus of international human rights
law, numerous international and regional treaties and documents, as well as
important international meetings and activities. It is also subject to on-going research and assessment. Each State has legislation and takes measures
to educate their children. However, even with regard to basic access to education and school attendance, results are still unsatisfactory. Although it is
difficult to provide exact data and statistics at the global level, estimates are
that 93 – 130 million children do not attend school, more than half of them
girls. Almost 80 percent of those live in sub-Saharan Africa and South Asia.4
The Child Rights International Network (CRIN) reports that nearly a billion
people entered the 21st century unable to read a book or sign their names,
and most are poorer and unhealthier than those who can.5
The right to education cannot be realized in isolation of other human rights,
meaning that a holistic approach is necessary for its realization. Assurance of
non-discrimination in access and attendance is a prerogative for successful
implementation of any education system. This applies to States’ obligation
to ensure that the principle of equality is respected in all aspects within the
rights to education. For example, as long as girls do not have equal access to
education, and as long as schools are not gender-sensitive environments that
promote equal participation and empowerment, gender equality will not be a
reality. This applies to children with disabilities, infected or affected by AIDS,
refugees or children belonging to indigenous population as well to any other
3
4
5
UN Doc E/C.12/1999/10, Para 1.
http://www.unicef.org/girlseducation/index.php
http://www.crin.org/themes/ViewTheme.asp?id=7
239
children who belonging to a minority or ethnic minority group. Because of all
of this, we speak today of a human rights-based approach to education. The
goal of such an approach is to ensure every child with a quality education that
respects and promotes her or his dignity and optimum development.6
The CRC’s Article 28 on the child’s right to education and Article 29 on the
aims of education is closely related to the general principles of the CRC nondiscrimination, the respect for the best interest of the child, the right to life,
survival and development and respect for the views of the child.
One of the basic requirements in human rights is that the States undertake
all measures to prevent and fight against discrimination. Equally, education
systems should be accessible to all children, without discrimination on any
grounds and positive steps should be taken to include the most marginalized.7
The ICESCR identifies three overlapping dimensions of accessibility: nondiscrimination, physical accessibility and economic accessibility8. The basic
questions in identifying discrimination in access to education are whether the
child’s race, color, ethnicity, sex, age, language, religion, economic or social
status are factors that prevent the child from enrolling and staying in school.
In addition, it is important in that context whether positive actions are taken
to reach those who are most vulnerable and whether there are any laws, such
as laws preventing child labour, which need to be enforced to ensure accessibility. 9
The UNESCO Convention against Discrimination in Education (Article
1) provides a definition of discrimination in education:
“‘discrimination’ includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political
or other opinion, national or social origin, economic condition or birth,
has the purpose or effect of nullifying or impairing equality of treatment
in education and in particular: (a) Of depriving any person or group of
persons of access to education of any type or at any level; (b) Of limiting
any person or group of persons to education of an inferior standard; (c)
Subject to the provisions of Article 2 of this Convention, of establishing or
maintaining separate educational systems or institutions for persons or
groups of persons; or (d) Of inflicting on any person or group of persons
conditions which are incompatible with the dignity of man.”
6
UNICEF and UNESCO. A Human Rights-Based Approach to Education for All. New
York/Paris: UNICEF and UNESCO, 2007, p 1.
7
UN Doc E/C.12/1999/10, Para 6 (b).
8
Ibid.
9
Vuckovic Sahovic, N, Doek, J, Zermatten, J: The Rights of the Child in International Law,
Staempfli, 2012. p. 220.
240
The dimension of non-discrimination is reaffirmed in the Article 28 of the
CRC where the right to education should be achieved based on equal opportunity and primary, secondary education and vocational information and
guidance should be accessible to all children. As indicated earlier, discrimination in education is addressed in other human rights treaties.
The CRC’s Article 29 adds the quality dimension to the rights set in Article
28. In addition, the Committee on the Rights of the Child’s GC 1 focused on
Article 29: The Aims of Education.10 Elimination of discrimination in education is closely related to the ways states formulate and implement aims of
education. There is a request, inter alia, to review and revise textbooks, school
programmes and teaching methods.11
As indicated in the CRC, education shall be directed to the development of
respect for human rights and fundamental freedoms, the principles enshrined
in the Charter of the United Nations12 and the development of respect for the
child’s parents, his or her own cultural identity, language and values, for the
national values of the country in which the child is living or the country from
which he or she may originate, and for civilizations different from his or her
own.13 To accept such kind of education is to stand against racism, racial discrimination, xenophobia and related intolerance. The CRC Committee underlines that racism and related phenomena thrive where there is ignorance,
unfounded fears of racial, ethnic, religious, cultural and linguistic or other
forms of difference, the exploitation of prejudices, or the teaching or dissemination of distorted values, and that emphasis must also be placed upon the
importance of teaching about racism as it has been practiced historically, and
particularly as it manifests or has manifested itself within particular communities.14
Education must aim at ensuring that every child learns essential life skills
and that no child leaves school without being equipped to face the challenges
that he or she can expect to be confronted with in life.15 Article 29 (1 (e, d))
of the CRC proclaims the aims of education as the preparation of the child for
responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and
religious groups and persons of indigenous origin, as well as the development
10
CRC Committee General comment No 1: The Aims of Education, CRC/GC/2001/1
For example, Article 10 of the Convention on Discrimination against Women (CEDAW)
implies that discrimination against women should be addressed through measures, in particular, by the revision of textbooks and school programmes and the adaptation of teaching
methods. CEDAW, Art 10 (c)
12
CRC Art 29 (1) (b).
13
CRC Art 29 (1) (c).
14
CRC GC 1, Para 11.
15
CRC GC 1, Para 9.
11
241
of respect for the natural environment. Education is therefore an indispensable tool for a systemic prevention and elimination of discrimination.
4. Other CRC rights relevant for the topic
Monitoring non-discrimination in education requires insight into other
rights of the child. It is closely related to the CRC basic principles of the rights
of the child: right to life, survival and development, respect for the views of
the child and the right to the primary consideration of the best interests of the
child. Besides, non-discrimination in education is measurable by checking
the state of rights of the CRC such as (but not limited to): freedom of expression, freedom of thought, conscience and religion, freedom of association and
peaceful assembly, protection of privacy, access to information, protection
from all forms of violence, children with disabilities, health (including health
education), children of minorities or of indigenous peoples, rest, leisure, play,
recreation and culture, protection from drug abuse, child labour, children in
armed conflicts. Therefore, a comprehensive list of indicators on non-discrimination in education should include mentioned rights as legal sources.
5. Monitoring child rights
Once students and practitioners get acquainted with the topic they monitor,
as well as legal sources and contents of rights, they should receive information/skill on how to monitor and develop indicators. The first step to do so is
through monitoring.
The States have universally accepted international legal obligations to implement rights within education, committing to implement those rights. In
order to implement rights, the States must, i.a., monitor implementation and
check it against international law. Measuring compliance of the national legal
provisions and practices in the field of child rights and the progress made
in that regard is a complex matter. There are on-going efforts to develop adequate tools for monitoring the implementation of the CRC and related UN
standards and Guidelines, which include measuring the compliance of national legal provisions and practices with these standards and the progress
made in respecting and implementing the rights of the child. One of the most
useful tools for monitoring is indicators. Various distinctions are made in the
development of indicators such as quantitative and qualitative indicators or
structural indicators, process indicators and outcome indicators. There is not
a comprehensive set of indicators for monitoring the implementation of the
rights of the child in all aspects, though there are many attempts on the international and national level.
242
Monitoring of children’s rights can be defined as: all activities for the purpose of assessing and measuring the compliance of national laws and practices with the provisions of the CRC and other international instruments such
as Minimum Standards or Guidelines relevant to the implementation of the
provisions of the CRC. In its General Comment No. 5 on Article 4 of the CRC
on General Measures of Implementation, the monitoring body of the CRC –
the CRC Committee recognized the importance of monitoring:
“Self-monitoring and evaluation is an obligation for Governments. But
the Committee also regards as essential the independent monitoring of
progress towards implementation by, for example, parliamentary committees, NGOs, academic institutions, professional associations, youth
groups and independent human rights institutions.”16
Compliance with the CRC and other relevant international law is an overall
objective of monitoring children’s rights. Measuring compliance of national
legal provisions and practices in the field of child discrimination in education
and the progress made in this regard is a complex matter.
The fact that schools are settings where children spend a large proportion of their time should encourage monitors to always look for and expect
violations of child rights, including with respect to equality. In other words,
those who monitor should objectively and independently look into the exercise of rights of children in education systems. This requires specific skills and
knowledge in the area of the rights of the child. It also requires knowledge in
monitoring and evaluation. There is a difference in monitoring and evaluation when carried out by different stakeholders. There are specific roles to be
played and it is not possible to expect that the State’, NHRI’s or NGOs’ and even
students’ monitoring are of the same comprehensiveness and quality. The State
has the responsibility to undertake the overall monitoring, requiring a high
level of knowledge and skills. The State has to look into overall quantitative
and qualitative indicators. Therefore, it is the State that has to provide means
and tools for individual and independent field monitors. This can be achieved
through capacity building, training and education as well as by budgeting. For
each monitor of non-discrimination of children in education it is helpful if
there is a developed plan with a set of indicators and related questions.
If compliance with the CRC is an overall objective of monitoring of children’s rights in education then there is always a need to define a specific goal.
Such goals can be thematic or geographic such as, for example, to assess participation of children in education, administration of discipline in education
or discrimination of children in an education system.
16
CRC GC General Measures of Implementation No. 5, CRC/GC/2003/5, Para 46.
243
6. Practical work: A draft list of rights, standards and indicators for
measuring non-discrimination in education
The following exercise is by no means exhaustive. It is just an example: a possible way to develop tools to monitor non-discrimination in education. The
list contains some empty rows, to be completed by students and practitioners.
They can also formulate/change/add standards, or formulate/change/add indicators. Students and practitioners can also decide to formulate detailed lists
of questions under each indicator.
✓
The list should start as:
GENERAL INTRODUCTION
✓
Describe in brief an area of the rights of the
child you want to monitor. Provide a general
definition of the particular right(s) you are going to monitor, in international law, as well as
their definition in your national laws. For the
purpose of this exercise, it should read as follows:
Discrimination is defined as any unjustifiable discrimination or unequal
treatment, or omission (exclusion, restriction or preference), in relation to
individuals or groups as well as members of their families or persons close to
them, which is based on race, colour, descent, nationality, national or ethnic
origin, language, religious or political beliefs, gender, gender identity, sexual
orientation, property, birth, genetic characteristics, health status, disability,
marital or family status, previous convictions, age, appearance, membership
in political, trade unions and other organizations, and other real or supposed
personal characteristics (hereinafter referred to as personal characteristics).
Specific measures introduced to achieve full equality; protection and advancement of persons or groups of persons who are at a disadvantage in the
educational process are not considered as discrimination (affirmative action).
Discrimination is prohibited. Every child has a right to be protected from all
forms of discrimination, in accordance with the Convention on the Rights of
the Child’s Article 2 and other international and national standards.
244
✓
Complete the General introduction: For the
particular topic of non-discrimination in education, add general information and definitions
on the rights in the education system, following
the previous example. Explain how they relate
to the right to non- discrimination.
RIGHT : 1. Context of Article 2 of the CRC on Non-discrimination
✓
Describe a right you are going to monitor to get
a thorough picture of the area you have chosen.
Identify its legal sources: international treaty,
international document, national law, national
document or other. For example, you can start
with one and add other sources:
Article 2 Convention on the Rights of the Child on non-discrimination is
one of the fundamental principles of the CRC, in accordance with which all
children have the right to be treated with respect in order to realize their full
potential.
✓
After that, “decompose” a right: find its essential
elements, define them as separate standards that
will help you develop indicators to monitor. For
example:
Standard 1.1. All children are treated with respect and dignity regardless of
race, colour, gender, language, religion, political or other opinion, national,
ethnic or social origin, property, ability level, birth or other status of the child,
his parent or legal guardian.
✓
Feel free to introduce explanations/more information on the standard, such as descriptions or
examples or even stakeholders responsible for the
implementation. After that, you will have enough
material do further decomposition, to its smallest pieces, such as, for example indicators for this
standard:
245
1.1.1. Teachers do not label children based on personal characteristics.
1.1.2. Children at school are label based on personal characteristics.
1.1.3. Children in school are informed that labelling on the basis of personal
characteristics is prohibited.
1.1.4. The school implements affirmative action measures to support vulnerable children.
1.1.5. The school keeps track of the results of affirmative action.
1.1.6. There is evidence of affirmative action measures taken by the school
to support vulnerable children.
1.1.7. The school does not use books, magazines, internet and other facilities that discriminate against any child or group of children.
1.1.8. The school does not share ideas, information and opinions which refer to differential treatment or violence against any person or group of persons with respect to their personal characteristics.
1.1.8. No written messages or symbols that constitute incitement to discrimination, hatred and violence towards children or any person or group
of persons with respect to their personal characteristics, is allowed in school.
1.1.9. The rules and the consequences of violation of rights apply equally to
all children.
1.1.10. The rules and the consequences of violation of rights apply equally to
all adults who work in school.
1.1.11. There is evidence that the rules of conduct in school and sanctions
therein are applied consistently.
Standard 1.2. Children and school staff are informed about discrimination
and know their rights and obligations.
Explanation: Children and adults in the school have the right to be informed
of their rights, to be able to act accordingly. Information about discrimination
should be clear and should send a message that discrimination will not be
tolerated and that victims will be protected. Information also helps students
and staff to understand which behaviour is discriminatory.
1.2.1. All teachers know what discrimination is and how to protect children
from it.
1.2.2. All students in school know what discrimination is and how to seek
redress.
246
1.2.3. Teachers know how to recognize discrimination and how to inform
students and their parents about school procedures, as well as other available procedures outside schools (Ombudsman…).
1.2.4. The school keeps record of the reported cases of discrimination and
corresponding follow up interventions.
1.2.5. The school keeps record of teachers’ professional development in the
field of prejudice and discrimination.
1.2.6. The school keeps record of the professional development of teachers’
in discrimination and protection mechanisms.
1.2.7. All teachers and associates organize workshops for children on discrimination and protection mechanisms.
1.2.8. All teachers’ associates organize workshops with students on identification of discrimination.
1.2.9. The school keeps track of the programs that teachers and associates
conducted and which relate to the Convention on the Rights of the child,
non-discrimination and protection mechanisms.
1.2.10. The annual plan and the development plan of the school include
implementation activities in the field of promotion of child rights and nondiscrimination.
Standard 1.3.The school keeps record about discriminated children and their
parents / guardians, and takes adequate measures to prevent such discrimination.
Explanation:___________________________________________________
1.3.1. School employees are encouraged to report any form of discrimination at school.
1.3.2. Children and parents/guardians are encouraged to report any form of
discrimination at school.
1.3.3. Teachers know how to react if a child is discriminated against.
1.3.4. The school has a record of all reported cases of discrimination and
measures taken to halt and prevent anyone’s future discriminatory conduct
in the school.
247
Standard 1.4. The students and parents/guardians are treated with due respect in the school.
Explanation: All children and their parents/guardians are accepted and respected in the school, regardless of their personal characteristics. Treatment
with respect of children and parents/ guardians relates to their personal characteristics and the ideas and requirements.
1.4.1. When addressing students, teachers and school staff do not use
names, nicknames and stereotypes which offend their dignity on the basis
of personal characteristics.
1.4.2. Student’s progress (positive or negative) is not exposed to ridicule.
1.4.3. When addressing parents, parents/guardians of students, teachers
and school staff do not use names, nicknames and stereotypes which offend
their dignity on the basis of personal characteristics.
1.4.4. The ideas and suggestions of children and their parents/guardians are
taken into account and discussed.
✓
Add another standard, followed by a list of indicators:
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
RIGHT: 2. Context of Articles 7, 8, 29 and 30
✓
This is an example of placing an issue under the
context of multiple CRC articles. The value of
such an approach is that it reflects indivisibility
of the rights of the child. The downsides are in
lack of precision in addressing non-discrimination of children in a school setting with respect of their identity and belonging to minority groups. You will find more guidance after the
standards and indicators under this title.
248
The Convention on the Rights of the Child in Article 7 recognizes the right
of every child to a name and nationality, and the right to be cared for. Article
8 The Convention regulates the right of every child to preserve his identity,
name and family relations.
Article 29 of the CRC’s defines as aim of education “development of respect
for the child’s parents, his or her own cultural identity, language and values, for
the national values of the country in which the child is living, the country from
which the he or her may originate, and for civilizations different from his or her
own.”
In accordance with Article 30 of the CRC, every child that belongs to an ethnic, religious or ethnic minority is allowed by the members of its group to
enjoy their culture, practice their rights and speak its language.
Standard 2.1. The educational institution respects the child’s name, nationality and the child’s relation with an ethnic, religious or other cultural group.
Explanation: _________________________________________________
_____________________________________________________________
2.1.1. The school teachers, staff and students respect each student, irrespective of her/his name and nationality.
2.1.2. The school implements a program about the importance of equality,
multiculturalism and encourages understanding and respect for other cultures, languages, color of skin, national origin, etc.
Standard 2.2. The school respects student’s identities.
Explanation: _________________________________________________
_____________________________________________________________
2.2.1. No aspect of the identity of children – e.g. physical appearance, race
and ethnicity, economic status, birth, gender, sexual orientation, level of
ability, native language, etc. is exposed to ridicule and used to create stereotypes.
2.2.2. The school respects all aspects of the student’s family culture.
249
Standard 2.3. The mother tongue of every child is recognized and respected
Explanation: __________________________________________________
_____________________________________________________________
2.3.1. Students who belong to ethnic minorities are provided education in
their language.
2.3.2. Students belonging to national minorities have the opportunity to
continue their education in a bilingual school (if 2.3.1 .is not possible)
2.3.3. Students belonging to national minorities have the opportunity to
study their language and culture. (if 2.3.1. and 2.3.2. are not possible)
✓
The rights under Right: 2 have something in
common, and can be grouped, as here, but can
also be broken into separate rights, with specific
standards and a more comprehensive lists of
indicators. Try and make your own division of
this section into 4 rights, in accordance with the
CRC.
_____________________________________________________________
_____________________________________________________________
RIGHT: 3. Context of Article 28 CRC
This article of the Convention guarantees the right to education for all children in accordance with their abilities and interests. From the point of view
of non-discrimination, this means that availability of education and information on educational institutions is guaranteed to every child; that children can
enrol in the school which they want in accordance with the law, and that all
children are required to complete compulsory education.
Standard 3.1. All children are enrolled in the school of their choice, in accordance with the law.
Explanation: __________________________________________________
_____________________________________________________________
250
3.1.1. Personal characteristics of the child’s do not complicate or prevent
enrolment into school.
3.1.2. The school implements specific measures and other legal measures to
support enrolment of children and students belonging to vulnerable groups,
especially children with disabilities and children belonging to minorities.
3.1.3. The school documents measures that it implements to support the enrolment of children belonging to vulnerable groups, such as children with
disabilities, children belonging to minorities, etc.
3.1.4. Documents requested for enrolment into school are the same for all
children. Any request for additional documentation that can prevent the
child from enrolment is not allowed.
3.1.5. Students belonging to vulnerable groups attend classes in the same
buildings as all other children.
3.1.6. Children belonging to vulnerable social groups attend classes in the
same classrooms with all other students.
Standard 3.2. The school implements programs and methods that enable each
child to realize her/his maximum potential and achieve general learning and
education standards.
Explanation: __________________________________________________
_____________________________________________________________
3.2.1 The school provides conditions that enable every child to, regardless
of personal characteristics, achieve common outcomes of education in accordance with the child’s abilities.
3.2.2. School keeps track of the conditions that enable every child to, regardless of personal characteristics, achieve general education outcomes.
3.2.3. Teachers use a variety of forms of teaching and learning methods, and
carry out assessment (and keep records) tailored to the needs of every child,
enabling them to achieve positive results.
3.2.4. Failure to set goals in the process of education is not attributed to the
personal characteristics of the child or his/her family, but rather results in
seeking out alternative ways to support the child’s learning.
3.2.5. The school implements special achievement standards for students
with exceptional abilities and constantly monitors their development and
advancement.
251
3.2.6. The school applies equal criteria for assessment of educational
achievement. The school cannot lower achievements standards for children
from vulnerable social groups.
3.2.7. There are records of activities and measures implemented by the
school to prevent early drop outs.
3.2.8. If a student, as a result of particular personal characteristics, does not
attend school regularly, the school takes measures in accordance with the
law, of which there are records.
✓
Add another right of your choice, followed by
standards and lists of indicators:
_____________________________________________________________
_____________________________________________________________
7. Conclusion
As indicated in the introduction to this chapter, no model of monitoring fits
all situations and settings. Therefore, the proposed list of standards and indicators, as a tool for monitoring child rights (non-discrimination in education in this case), should be understood as guidance, rather than a complete
model. The list offered in this Chapter is limited in scope, which reflects the
fact that rights of the child are complex; that they should be monitored taking into account its inter-relatedness and the fact that monitoring one stakeholder (this time a school) provides only partial answers that are needed to
assess overall non-discrimination in education. However, this is a step-by step
approach that can encourage university teachers and their students, as well as
practitioners to undertake more ambitious monitoring exercises, in this or
any other area of the rights of the child.
The last but not least, the usefulness of this list of standards and indicators
will depend on the type and levels of education students and practitioners
already have. Students and practitioners with a profounder knowledge and
methodology skills on human rights might find it too basic; other students
and practitioners can find this tool quite challenging.
252
Further readings
Vuckovic Sahovic, N, Doek, J, Zermatten, J. (2012). The Rights of the Child in International
Law, Staempfli.
UNICEF and UNESCO: A Human Rights-Based Approach to Education for All, 2007,
http://www.unicef.org/publications/files/A_Human_Rights_Based_Approach_to_
Education_for_All.pdf
UNICEF: Manual for Measurement of Children in Formal Care Indicators, 2006, http://
www.unicef.org/protection/Formal_Care20Guide20FINAL.pdf
UNICEF and UNODC: Manual for Measurement of juvenile justice indicators, 2007,
https://www.unodc.org/pdf/criminal_justice/Manual_for_the_Measurement_of_Juvenile_Justice_Indicators.pdf
Right to Education Project: The Right to Education: Indicators. http://www.right-toeducation.org/sites/right-to-education.org/files/resource-attachments/RTE_List_
Right_to_Education_Indicators_May_2013.pdf
CONCLUSION: Challenges and pathways for future work in the field 253
CONCLUSION:
CHALLENGES AND PATHWAYS
FOR FUTURE WORK
IN THE FIELD
Hanne Warming
Hanne Warming, PhD is Professor of sociology, childhood
and social work, and head of the research group ‘Changing
Societies: Citizenship, Participation and Power’, at the Department of Society and Globalisation, Roskilde University,
Denmark. She is engaged in children rights issues as board
member of the Danish NGO ‘Children’s Welfare’.
[email protected]
Overall, this book gives insight into a variety of types and forms of child discrimination and furthermore provides a richness of sources for identifying
and fighting such discrimination. Some chapters analyze specific forms of
discrimination or discrimination in certain cultural and structural contexts,
while others focus on legal sources or provide analytical tools for assessment
and fighting of discrimination. Finally, chapters providing examples of good
practice of non-discrimination are included.
In 2012 Barry Percy-Smith and Nigel Thomas, in the conclusion of a book
on children’s participation, wrote: “Drawing together conclusions from the
range and diversity of material included in this handbook is something of a
challenge” (Percy-Smith & Thomas, 2012: 356). Exactly the same could be
written about this textbook on children and non-discrimination. However,
the diversity of the contributions and the difficulties of writing a comprehensive conclusion did not come to us as a surprise. Rather the opposite, we
expected and regarded it as necessary and appropriate due to the very nature
of the subject. Thus, the book reflects how the fight against, and analyses of,
discrimination of children must take places in many different social settings
and many different structural and cultural contexts, and further requires a
multi- and interdisciplinary approach. Only such a multisided and interdisciplinary approach is appropriate to address the challenge of identifying and
combating discrimination as the complex, contextualized and multisided
phenomenon, it is.
254
Hanne Warming
Discrimination grounded in the generational order
In some cases, children are discriminated, just because they are children. That
is age based discrimination, which is typically taken as natural due to the
generational order. Paradoxically, such discrimination actually is present also
in one of the key legal sources for fighting discrimination of children, namely
the Convention of the Rights of the Child. Thus, through the formulation that
the child’s view must be ‘given due weight in accordance with age and maturity’, the convention points out that children must be heard and have a say in
decision making, however relativizes this right in accordance with the adult
agents rating of them on a scale running from childish to mature (i.e. adultlike). Thus, exploration and assessment of, as well as strategies to fight, such
discrimination legalized through weak and adultism biased formulations in
legal sources and policies form an essential future task.
Another kind of age based discrimination, related to (radicalized interpretation and practice of) the Convention of the Rights of the Child, is when
certain rights are interpreted or practiced as duties of the child – as something
the child cannot withdraw from. Examples of this include children’s rights to
be heard and have a say, and children’s rights to belong to their family. Such
radicalized interpretations or misunderstood practices of children’s rights
might in the future become a growing problem – an increasing important
field for research – in various fields.
Negative consequences of discrimination
In other cases, children are discriminated against for other reasons than the
generational order, however often intersecting with the generational order.
Such discrimination either affects a certain group of children or only a single
child depending on the type and form of discrimination. The former is the
case, if the discrimination is related to broader societal un-equality structures
(e.g. class, gender, ethnicity, religion, sexuality etc.) and/or a certain institutional context (e.g. residential homes for children, schools, governing bodies
etc.), while discrimination of a single child as a stand-alone-case is rather an
outcome of randomness.
Nevertheless, whether the one or the other type and form, discrimination
is a matter of injustice with negative impact on the life conditions, wellbeing
and citizenship learning of the affected children, reflecting a pathological feature of society: Discrimination is an outcome of inequality and produces disintegrating societal processes, alienation and lack of social cohesion (Delanty,
2003; Warming, 2014). Exploration of the negative impact of discrimination
on the children in question as well as how this reflects a pathological features
CONCLUSION: Challenges and pathways for future work in the field
255
of a society as such, not only affecting those children in question, but all of us,
both children and adults, thus constitutes another essential future task.
Outro: Furthering the future work with children and
(non)discrimination
Despite the diversity, the contributions in this book do not cover all the social
settings and different structural and cultural contexts in which children are
exposed to discrimination, however it does provide a rich source regarding
the international and European legal framing of children’s rights to non-discrimination (part 1) as well as regarding analytical approaches and tools for
researching, exploration, monitoring and evaluating various types and forms
of discrimination of children (part 2). It is our hope that researchers and practitioners working against with children will find these sources inspiring and
useful to identify and fight discrimination of children also regarding other
groups of children than represented in this book, as well as to fill some of
the many knowledge gaps in the field. Here we just point out few arenas for
furthering the future work with children and (non-)discrimination; namely
criminal procedures involving children and young people, child prostitution,
asylum seeking children and families, representation of children in the media,
public day care, foster care, residential institutions for children and youth,
and mental care institution and services for children and young people.
256
Hanne Warming
9 789949 953882
The present interdisciplinary textbook forms an integrated
part of the project “Children’s Rights Erasmus Academic
Network” (CREAN), which is funded by the European
Commission.
With this manual, CREAN aims to promote understanding
of Art 2 of the UN CRC – the child’s right to non-discrimination and equality. It sheds light on age discrimination
against children in various life domains of the child, and
discusses the ways to non-discrimination and the value of
equality.

children and non-discrimination

Transcription

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